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EXHIBIT 4.09
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CREDIT AGREEMENT
AMONG
X. X. XXXXX & CO. - CONN.,
X. X. XXXXX & CO.,
THE SEVERAL BANKS
PARTIES HERETO
and
CHEMICAL BANK,
AS AGENT
DATED AS OF DECEMBER 29, 1995
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.2 Obligations of Borrowers; Revolving Credit Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.3 Procedure for Revolving Credit Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 3. BILATERAL OPTION LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.1 Requests for Offers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.2 Reports to Agent; Determination of Dollar Equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.3 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.4 Repayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4. BID LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.1 The Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.2 Procedure for Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.3 Repayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.4 Interest on Bid Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.5 Obligations of Borrowers; Bid Loan Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 5. LOAN FACILITY COMMON PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.1 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.2 Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.3 Termination or Reduction of Commitments; Change of Control Date . . . . . . . . . . . . . . . . . . . . . . 24
5.4 Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.5 Conversion and Continuation Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.6 Minimum Amounts of Eurodollar Tranches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.7 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.8 Inability to Determine Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.9 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.10 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.11 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.12 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.13 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.1 Corporate Existence; Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.2 Corporate Power, Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.3 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.4 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.5 Ownership of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.6 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.7 Disclosure of Contingent Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.8 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.9 Certain Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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6.10 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.12 Investment Company Act; Other Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.13 Purpose of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.14 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.15 Principal Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.1 Conditions to Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.2 Conditions to Each Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.4 Conduct of Business and Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.6 Inspection of Property, Books and Records;
Discussions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.8 Environmental Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 9. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.1 Financial Condition Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.2 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.3 Limitation on Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.4 Limitation on Asset Transfers to Foreign
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.5 Limitation on Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 10. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 11. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
11.4 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.6 Non-Reliance on Agent and Other Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
11.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.8 Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
11.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 12. GUARANTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
12.1 Grace New York Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
12.2 Company Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
12.3 No Subrogation, Contribution, Reimbursement or
Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
12.4 Amendments, etc., with respect to the Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
12.5 Guarantee Absolute and Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
12.6 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.7 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
13.1 Amendments and Waivers; Replacement of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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13.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
13.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
13.4 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
13.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
13.6 Successors and Assigns; Participations;
Purchasing Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
13.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
13.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.12 Submission to Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.13 Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
13.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
13.15 Additional Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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Schedules
Schedule I Commitments; Lending Offices and Addresses for
Notices
Schedule II Principal Subsidiaries
Exhibits
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Bid Loan Note
Exhibit C Form of Bid Loan Confirmation
Exhibit D Form of Bid Loan Offer
Exhibit E Form of Bid Loan Request
Exhibit F-1 Form of Opinion of Counsel to the Company and Grace
New York
Exhibit F-2 Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit G Form of Officer's Certificate
Exhibit H Form of Commitment Transfer Supplement
Exhibit I Form of Notice of Additional Borrower
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CREDIT AGREEMENT, dated as of December 29, 1995, among X. X. XXXXX &
CO.-CONN., a Connecticut corporation (the "Company"), X. X. XXXXX & CO., a New
York corporation and sole shareholder of the Company ("Grace New York"), the
several banks from time to time parties to this Agreement (the "Banks") and
CHEMICAL BANK, a New York banking corporation, as agent for the Banks hereunder
(in such capacity, the "Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR Loans": Loans the rate of interest applicable to which
is based upon the Alternate Base Rate.
"Affiliate": as to any Person, (a) any other Person (other
than a Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person or (b) any
Person who is a director, officer, shareholder or partner (i) of such
Person, (ii) of any Subsidiary of such Person or (iii) of any Person
described in the preceding clause (a). For purposes of this
definition, "control" of a Person means the power, directly or
indirectly, either to (i) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or
(ii) direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Aggregate Outstanding Bilateral Option Loans": at any time,
(i) the aggregate outstanding principal amount of all Dollar Bilateral
Loans and (ii) the aggregate Dollar Equivalents at such time with
respect to all outstanding Alternative Currency Bilateral Loans.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. "Prime Rate"
shall mean the rate of interest per annum publicly announced from
time to time by the Agent as its prime rate in effect at its
principal office in New York City. "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so
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published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Agent from
three federal funds brokers of recognized standing selected by it. If
for any reason the Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate, for any reason, including,
the inability or failure of the Agent to obtain sufficient quotations
in accordance with the terms hereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"Alternative Currency": any currency other than Dollars
which is freely transferable and convertible into Dollars.
"Alternative Currency Bilateral Loan": a Loan made by a Bank
to any Borrower in an Alternative Currency pursuant to Section 3.
"Applicable Margin": for any day on which the long term
senior unsecured debt of the Company is rated by both S&P and Moody's,
the rate per annum under the caption "Margin" (a "Margin Rate") set
forth below opposite the S&P and Moody's ratings applicable to such
debt on such day (or, if such ratings are set opposite two different
Margin Rates, then the Applicable Margin shall be the lower of said
two Margin Rates):
Margin S&P Moody's
------ --- -------
.450% BB+ or lower Ba1 or lower
.325% BBB- Baa3
.300% BBB Baa2
.270% BBB+ Baa1
.240% A- or higher A3 or higher
provided that if on any day the long term senior unsecured debt of the
Company is rated by only one of either S&P or Moody's, the Applicable
Margin will be determined based on the rating by such rating agency,
and provided, further, that if on any day the long term senior
unsecured debt of the Company is rated by neither S&P nor Moody's, the
Applicable Margin will be determined based on the rating of
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such debt by Duff & Xxxxxx, Fitch or another nationally recognized
statistical rating organization agreed to by and among the Company,
the Agent and the Majority Banks (each, a "Substitute Rating Agency")
and will be the Margin Rate set forth above opposite the S&P and
Moody's ratings comparable to such Substitute Rating Agency's rating
of such debt on such date, and provided, further, that if on any day
the long term senior unsecured debt of the Company is rated by none of
S&P, Moody's or any Substitute Rating Agency, the Company, the Agent
and the Banks will negotiate in good faith to determine an alternative
basis for calculating the Applicable Margin consistent with the table
set forth above and, if agreement on such alternative basis is not
reached within 30 days, the Applicable Margin will be calculated on an
alternative basis determined by the Agent and the Banks in their
reasonable discretion consistent with the table above, and until such
alternative basis is determined the Applicable Margin will be the
Applicable Margin last determined as provided in the table above.
"Available Commitment": as to any Bank at any time, an amount
equal to the excess, if any, of (a) the amount of such Bank's
Commitment over (b) the Loan Outstandings of such Bank at such time.
"Bid Loan": each Bid Loan made pursuant to Section 4.
"Bid Loan Banks": Banks which have outstanding Bid Loans or
which are making Bid Loans.
"Bid Loan Confirmation": each confirmation by the Borrower of
its acceptance of Bid Loan Offers, which Bid Loan Confirmation shall
be substantially in the form of Exhibit C.
"Bid Loan Note": as defined in subsection 4.5; collectively,
the "Bid Loan Notes".
"Bid Loan Offer": each offer by a Bank to make Bid Loans
pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the
information specified in Exhibit D.
"Bid Loan Request": each request by a Borrower for Banks to
submit bids to make Bid Loans at a fixed rate, which shall contain the
information in respect of such requested Bid Loans specified in
Exhibit E and shall be delivered to the Agent.
"Bilateral Option Loan": a Loan made by a Bank to a Borrower
pursuant to Section 3. Bilateral Option Loans may be either Dollar
Bilateral Loans or Alternative Currency Bilateral Loans.
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"Bilateral Option Loan Report": as defined in subsection 3.2.
"Board": The Board of Governors of the Federal Reserve System
or any successor thereto.
"Borrower": the Company and any Subsidiary of the Company
with respect to which a Notice of Additional Borrower has been given
and all conditions precedent to the effectiveness thereof have been
satisfied.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3 and 4.2, as a date on which a Borrower
requests the Banks to make Loans hereunder, or any date that a
Bilateral Option Loan is made in accordance with subsection 3.1.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"Capitalized Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required to be
capitalized in accordance with GAAP.
"Change of Control Date": (i) the first day on which the
Company determines that any Person or group of related Persons has
direct or indirect beneficial ownership of 30% or more of the
outstanding capital stock of Grace New York having ordinary voting
power (other than stock having such power only by reason of the
happening of a contingency) for the election of a majority of the
board of directors of Grace New York or (ii) the first day on which
any Person or group of related Persons shall acquire all or
substantially all of the assets of Grace New York.
"Chemical": Chemical Bank.
"Closing Date": the first date on which the conditions set
forth in subsection 7.1 have been satisfied or waived.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Bank, the obligation of such Bank to
make Revolving Credit Loans hereunder to the Borrowers in an aggregate
principal amount at any one time outstanding not to exceed the amount
set forth opposite such Bank's name on Schedule I under the heading
"Commitment".
"Commitment Percentage": as to any Bank at any time, the
percentage of the aggregate Commitments then constituted by such
Bank's Commitment.
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"Commitment Period": the period from and including the date
hereof to but not including the Termination Date or such earlier date
on which the Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001(a)(14) of ERISA or is part of a group
which includes the Company and which is treated as a single employer
under subsection (b) or (c) of Section 414 of the Code.
"Consolidated Adjusted Net Worth": at a particular date, with
respect to Grace New York and its Subsidiaries, and without
duplication, the sum of all amounts which would, in accordance with
GAAP, be set forth opposite the captions "Total Shareholders' Equity",
"Minority interests, current" and "Minority interests, noncurrent" (or
the equivalent captions) on a consolidated balance sheet of Grace New
York and its Subsidiaries prepared as of such date, plus (a) non-cash
after-tax charges arising from: (1) asset disposals (excluding the
retirement of property, plant and equipment in the ordinary course of
business) by Grace New York and its Subsidiaries, (2) the
implementation or modified application of financial accounting
standards applicable to Grace New York and its Subsidiaries, and (3)
other special non-recurring transactions (including charges relating
to Restructuring Activities, discontinued operations and asbestos
property damage litigation and claims), in each case referred to in
this clause (a) occurring after June 30, 1994, plus (b) any payments
received in respect of non-cash after-tax gains referred to in clause
(c) of this definition, minus (c) non- cash after-tax gains arising
from: (1) asset disposals (excluding the retirement of property,
plant and equipment in the ordinary course of business) by Grace
New York and its Subsidiaries, (2) the implementation or modified
application of financial accounting standards applicable to Grace
New York and its Subsidiaries, and (3) other special non-recurring
transactions (including gains relating to Restructuring Activities,
discontinued operations and asbestos property damage litigation and
claims), in each case referred to in this clause (c) occurring after
June 30, 1994, minus (d) any payments made in respect of non-cash
after-tax charges referred to in clause (a) of this definition.
"Consolidated Interest Expense": for any period, with respect
to Grace New York and its Subsidiaries, the amount which, in
conformity with GAAP, would be set forth opposite the caption
"Interest expense and related financing costs" (or the equivalent
caption) on a consolidated statement of operations of Grace New York
and its Subsidiaries for such period.
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"Consolidated Debt": at a particular date, with respect to
Grace New York and its Subsidiaries, and without duplication, the sum
of the amounts set forth on a consolidated balance sheet of Grace New
York and its Subsidiaries prepared as of such date in accordance with
GAAP opposite the captions (1) "Long-term debt" (or the equivalent
caption) and (2) "Short-term debt" (or the equivalent caption) but
always to include all indebtedness for borrowed money of Grace New
York and its Subsidiaries in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Default": any of the events specified in Section 10, whether
or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Dollar Bilateral Loan": a Bilateral Option Loan denominated
in Dollars.
"Dollar Equivalent": on any date of determination by the
Agent pursuant to subsection 3.2(b) or 3.2(c), as applicable, in
respect of any Alternative Currency Bilateral Loan the amount of
Dollars obtained by converting the outstanding amount of currency of
such Alterative Currency Bilateral Loan, as specified in the then most
recent Bilateral Option Loan Report, into Dollars at the spot rate for
the purchase of Dollars with such currency as quoted by the Agent at
its principal foreign exchange trading operations office in New York
City on such date.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": any Subsidiary of Grace New York other
than a Foreign Subsidiary.
"Domestic Indebtedness": any Indebtedness of Grace New York
and any Domestic Subsidiary.
"Duff & Xxxxxx": Xxxx & Xxxxxx, Inc.
"EBIT": for any period, with respect to Grace New York and
its Subsidiaries, (a) all amounts which would be set forth opposite
the caption "Income from continuing operations before income taxes"
(or the equivalent caption) on a consolidated statement of income of
Grace New York and its Subsidiaries prepared in accordance with GAAP
for such period plus (b) non-cash pre-tax charges arising from: (1)
asset disposals (excluding the retirement of property, plant
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and equipment in the ordinary course of business) by Grace New York
and its Subsidiaries, (2) the implementation or modified application
of financial accounting standards applicable to Grace New York and its
Subsidiaries, and (3) other special non-recurring transactions
(including charges relating to Restructuring Activities, discontinued
operations and asbestos property damage litigation and claims) (to the
extent that such amounts have been deducted in determining the amount
set forth opposite the caption "Income from continuing operations" (or
the equivalent caption) for such period), plus (c) Consolidated
Interest Expense for such period, plus (d) any payments received in
such period in respect of non-cash pre-tax gains referred to in clause
(e) of this definition, minus (e) non-cash pre-tax gains arising
from: (1) asset disposals (excluding the retirement of property,
plant and equipment in the ordinary course of business) by Grace New
York and its Subsidiaries, (2) the implementation or modified
application of financial accounting standards applicable to Grace New
York and its Subsidiaries, and (3) other special non-recurring
transactions (including charges relating to Restructuring Activities,
discontinued operations and asbestos property damage litigation and
claims) (to the extent that such amounts have been added in
determining the amount set forth opposite the caption "Income from
continuing operations" (or the equivalent caption) for such period),
minus (f) any payments made in such period in respect of non-cash
pre-tax charges referred to in clause (b) of this definition.
"Environmental Laws": any and all federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees or requirements of any Governmental Authority
regulating, relating to or imposing liability or standards of conduct
concerning environmental protection matters, including without
limitation, Hazardous Materials, as now or may at any time hereafter
be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied
to a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of any reserve requirements in
effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of
the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D
of such Board) maintained by a member bank of such System.
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"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the rate at which Chemical is offered Dollar deposits at or
about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans, the Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"Event of Default": any of the events specified in Section
10, provided that any requirement for the giving of notice, the lapse
of time, or both, has been satisfied.
"Existing Agreements": the 364-Day Credit Agreement dated as
of September 1, 1994 among the Company, Grace New York, the several
banks party thereto and Chemical, as agent, and the Credit Agreement
dated as of September 1, 1994 among the Company, Grace New York, the
several banks party thereto and Chemical, as agent, as each such
agreement has been or may be amended, modified or supplemented from
time to time.
"FASB 5": Statement of Financial Accounting Standards
No. 5, Accounting for Contingencies, of the Financial Accounting
Standards Board, as the same may be from time to time supplemented,
amended or interpreted by such Board.
"Fitch": Fitch Investors Service Inc.
"Foreign Subsidiary": any Subsidiary of Grace New York (i)
that is organized under the laws of any jurisdiction other than any
state (including the District of Columbia), territory or possession of
the United States of America (a "foreign jurisdiction"), or (ii) more
than 50 percent of the book value of the assets of which (as of the
end of the most recent fiscal period for which financial statements
are required to have been provided pursuant to subsection 8.1(a) or
(b)) are located in one or more foreign jurisdictions, or (iii) more
than 50 percent of the Net Sales and Revenues of which (for the most
recent fiscal year for which financial statements are required to have
been provided pursuant to
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subsection 8.1(a)) were from sales made and/or services provided in
one or more foreign jurisdictions, or (iv) more than 50 percent of the
book value of the assets of which (as of the end of the most recent
fiscal period for which financial statements are required to have been
provided pursuant to subsection 8.1(a) or (b)) consists of equity
interests in and/or Indebtedness of one or more Subsidiaries that are
"Foreign Subsidiaries" within clauses (i), (ii), (iii) or (iv) of this
definition.
"Foreign Subsidiary Indebtedness": any Indebtedness of any
Foreign Subsidiary.
"GAAP": generally accepted accounting principles in the
United States of America in effect from time to time.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Hazardous Materials": any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances,
petroleum products (including crude oil or any fraction thereof),
defined or regulated as such in or under any Environmental Law.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices) or which is evidenced by a note,
bond, debenture or similar instrument, (b) all obligations of such
Person under Capitalized Leases, and (c) without duplication, all
"loss contingencies" of such Person of the types described in
paragraph 12 of FASB 5, whether or not disclosed or required to be
disclosed on the financial statements or footnotes thereto of such
Person pursuant to GAAP.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the
fifteenth day of each March, June, September and December to occur
while such Loan is outstanding and, if different, the Termination
Date, and (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, and (c) as
to any Eurodollar Loan
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having an Interest Period longer than three months, if any, as agreed
by the Borrower of such Loan and the Banks.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loan and ending one, two, three or six
months thereafter, or such other period as may be requested by
the Borrower and agreed to by the Banks making such Loan, as
selected by the Borrower of such Loan in its notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months
thereafter, or such other period as may be requested by the
Borrower and agreed to by the Banks making such Loan, as
selected by such Borrower by irrevocable notice to the Agent
and the Banks which made such Eurodollar Loan not less than
two Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend
beyond the Termination Date shall end on the Termination Date;
and
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
"Lien": any mortgage, pledge, hypothecation, assignment as
security, security deposit arrangement, encumbrance, lien (statutory
or other), conditional sale or
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other title retention agreement or other similar arrangement.
"Loan": any loan made by any Bank pursuant to this Agreement.
"Loan Documents": this Agreement, the Notes and the Notices
of Additional Borrower.
"Loan Outstandings": as to any Bank at any time, the sum of
(a) the aggregate principal amount of all Revolving Credit Loans made
by such Bank then outstanding, and (b) such Bank's Commitment
Percentage multiplied by the aggregate principal amount of all Bid
Loans then outstanding.
"Loan Parties": the collective reference to the Company, the
other Borrowers, and Grace New York.
"Majority Banks": at any time, Banks the Commitment
Percentages of which aggregate (or, if at such time all of the
Commitments shall have been terminated, Banks the Commitment
Percentages of which immediately prior to such termination aggregated)
at least 51%.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, properties, or condition (financial or
otherwise) of Grace New York and its Subsidiaries taken as a whole,
(b) the ability of the Company, or any Borrower or Grace New York to
perform their respective obligations hereunder and under the other
Loan Documents to which such Person is a party, or (c) the validity or
enforceability of the Loan Documents or the rights or remedies of the
Agent or the Banks hereunder or thereunder.
"Xxxxx'x": Xxxxx'x Investors Services, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Sales and Revenues": with respect to any Person for any
period, all sales and operating revenues of such Person during such
period computed in accordance with GAAP after deducting therefrom
sales returns, discounts and allowances.
"Notes": the collective reference to the Revolving Credit
Notes and the Bid Loan Notes, if any.
"Notice of Additional Borrower": as defined in subsection
13.15(a).
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"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to Grace New York or any of the Borrowers,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Loans and the Notes, if any, and all
other obligations and liabilities of Grace New York or the Borrowers
to the Agent or to the Banks, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, the Notes, any other Loan Document and any other document
made, delivered or given in connection herewith or therewith, whether
on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees
and disbursements of counsel to the Agent or to the Banks that are
required to be paid by Grace New York and/or the Borrowers pursuant to
the terms of this Agreement) or any other obligation hereunder or
thereunder.
"Participant": as defined in subsection 13.6(b).
"Payment Sharing Notice": a written notice from the Company
or any Bank informing the Agent that an Event of Default has occurred
and is continuing and directing the Agent to allocate payments
thereafter received from the Borrower in accordance with subsection
5.9(c).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prepayment Date": as defined in subsection 5.3(b).
"Principal Subsidiary": (a) any Borrower and (b) any other
Subsidiary if it shall have Total Assets at the end of the most recent
fiscal year for which financial statements are required to have been
furnished pursuant to subsection 8.1(a) in excess of $75,000,000 or
have had during such year Net Sales and Revenues in excess of
$75,000,000.
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"Purchasing Banks": as defined in subsection 13.6(c).
"Register": as defined in subsection 13.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System.
"Regulation X": Regulation X of the Board of Governors of the
Federal Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsection .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Requested Bank": as defined in subsection 3.1(a).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, the
president, the chief financial officer or the treasurer, assistant
treasurer or controller of Grace New York.
"Restructuring Activities": all reductions in carrying value
of assets or investments and provisions for the termination and/or
relocation of operations and employees.
"Revolving Credit Loans": as defined in subsection 2.1(a).
"Revolving Credit Notes": as defined in subsection 2.2.
"SEC": the Securities and Exchange Commission, and any
successor or analogous federal Governmental Authority.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group.
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"Subsidiary": as to any Person, a corporation, partnership or
other entity which is required to be consolidated with such Person in
accordance with GAAP; provided, that any such corporation, partnership
or other entity which is controlled by a receiver or trustee under any
bankruptcy, insolvency or similar law shall continue to be a
"Subsidiary" of such Person for purposes of this Agreement. Unless
otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of Grace New York.
"Substitute Rating Agency": as defined in the definition of
"Applicable Margin".
"Termination Date": September 30, 1996.
"Total Assets": with respect to any Person at any time, the
total of all assets appearing on the asset side of the balance sheet
of such Person prepared in accordance with GAAP as of such time.
"Total Capitalization": at a particular date, the sum of
Consolidated Debt and Consolidated Adjusted Net Worth.
"Transferee": as defined in subsection 13.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, if any, or any certificate or other document
made or delivered pursuant hereto.
(b) As used herein and in the Notes, if any, and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to Grace New York and its Subsidiaries not defined in subsection
1.1, to the extent not defined, shall have the respective meanings given to
them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement, unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
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SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to the terms and conditions
hereof, each Bank severally agrees to make revolving credit loans ("Revolving
Credit Loans") to any Borrower from time to time during the Commitment Period
in an aggregate principal amount at any one time outstanding not to exceed the
amount of such Bank's Commitment, provided that no Bank shall make any
Revolving Credit Loan if, (i) after giving effect to such Loan, the aggregate
Loan Outstandings of all of the Banks plus the Aggregate Outstanding Bilateral
Option Loans would exceed the aggregate Commitments or (ii) the commitments
under the Existing Agreements are not fully utilized.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower thereof and notified to the Agent in accordance with
subsections 2.3 and 5.5, provided that no Revolving Credit Loan shall be made
as a Eurodollar Loan maturing after the Termination Date.
2.2 Obligations of Borrowers; Revolving Credit Notes. (a)
Each Borrower agrees that each Revolving Credit Loan made by each Bank to such
Borrower pursuant hereto shall constitute the promise and obligation of such
Borrower to pay to the Agent, on behalf of such Bank, at the office of the
Agent specified in subsection 13.2, in lawful money of the United States of
America and in immediately available funds the aggregate unpaid principal
amount of all Revolving Credit Loans made by such Bank to such Borrower
pursuant to subsection 2.1, which amounts shall be due and payable (whether at
maturity or by acceleration) as set forth in this Agreement and, in any event,
on the Termination Date.
(b) Each Borrower agrees that each Bank and the Agent are
authorized to record (i) the date, amount and Type of each Revolving Credit
Loan made by such Bank to such Borrower pursuant to subsection 2.1, (ii) the
date of each continuation thereof pursuant to subsection 5.5(b), (iii) the date
of each conversion of all or a portion thereof to another Type pursuant to
subsection 5.5(a), (iv) the date and amount of each payment or prepayment of
principal of each such Revolving Credit Loan and (v) in the case of each such
Revolving Credit Loan which is a Eurodollar Loan, the length of each Interest
Period and the Eurodollar Rate with respect thereto, in the books and records
of such Bank or the Agent, as the case may be, and in such manner as is
reasonable and customary for such Bank or the Agent, as the case may be, and a
certificate of an officer of such Bank or the Agent, as the case may be,
setting forth in reasonable detail the information so recorded, shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided that the failure to make any such recording shall not in any way
affect the obligations of such Borrower hereunder.
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(c) Each Borrower agrees that, upon the request to the Agent
by any Bank at any time, the Revolving Credit Loans made by such Bank to such
Borrower shall be evidenced by a promissory note of such Borrower,
substantially in the form of Exhibit A with appropriate insertions as to
Borrower, payee, date and principal amount (a "Revolving Credit Note"), payable
to the order of such Bank and in a principal amount equal to the lesser of (a)
the amount of the initial Commitment of such Bank and (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by such Bank to such
Borrower. Upon the request to the Agent by any such Bank at any time, such
Borrower shall execute and deliver to such Bank a Revolving Credit Note
conforming to the requirements hereof and executed by a duly authorized officer
of such Borrower. Each Bank is hereby authorized to record the date, Type and
amount of each Revolving Credit Loan made by such Bank to such Borrower, each
continuation thereof, each conversion of all or a portion thereof to another
Type, the date and amount of each payment or prepayment of principal thereof
and, in the case of Eurodollar Loans, the length of each Interest Period and
the Eurodollar Rate with respect thereto, on the schedule annexed to and
constituting a part of its Revolving Credit Note and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided that the failure to make any such recording shall not in any way
affect the obligations of such Borrower hereunder or thereunder. Each
Revolving Credit Note shall (x) be dated the Closing Date, (y) be stated to
mature on the Termination Date and (z) provide for the payment of interest in
accordance with subsection 5.1.
2.3 Procedure for Revolving Credit Borrowing. Any Borrower
may borrow under the Commitments from all Banks during the Commitment Period on
any Business Day, provided that such Borrower shall give the Agent irrevocable
notice (which notice must be received by the Agent (a) prior to 4:00 P.M., New
York City time, three Business Days prior to the requested Borrowing Date, if
all or any part of the requested Revolving Credit Loans are to be initially
Eurodollar Loans, or (b) prior to 10:00 A.M., New York City time, on the
requested Borrowing Date, otherwise), specifying (i) the amount to be borrowed,
(ii) the requested Borrowing Date, (iii) whether the borrowing is to be of
Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the borrowing
is to be entirely or partly of Eurodollar Loans, the respective amounts of each
such Type of Loan and the respective lengths of the initial Interest Periods
therefor. Each borrowing under the Commitments shall be in an amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, in the case
of ABR Loans, if the amount of the Available Commitments minus the Aggregate
Outstanding Bilateral Option Loans is less than $5,000,000, such lesser
amount). Upon receipt of such notice from such Borrower, the Agent shall
promptly notify each Bank thereof. Each Bank will make the amount of its pro
rata share of each such borrowing available to the Borrower at the office of
the Agent specified in subsection 13.2 prior to
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12:00 noon, New York City time, on the Borrowing Date requested by such
Borrower in funds immediately available to the Agent. Such borrowing will then
be made available to such Borrower on the books of such office with the
aggregate of the amounts made available to the Agent by the Banks and in like
funds as received by the Agent.
SECTION 3. BILATERAL OPTION LOANS
3.1 Requests for Offers. (a) From time to time during the
period from the Closing Date until the Termination Date, any Borrower may
request any or all of the Banks (each such Bank to which such a request is
made, a "Requested Bank") to make offers to make Bilateral Option Loans,
provided that immediately after making any such Bilateral Option Loan, the
aggregate Loan Outstandings of all the Banks plus the Aggregate Outstanding
Bilateral Option Loans will not exceed the aggregate Commitments. Any such
request shall specify the principal amount and maturity date of the Bilateral
Option Loans for which such Borrower is requesting offers, whether such
Bilateral Option Loans are requested to be Dollar Bilateral Loans or
Alternative Currency Bilateral Loans, the time by which offers to make such
Bilateral Option Loans must be made by such Requested Bank and by which such
offers shall be accepted or rejected by such Borrower, and if all or any part
of the requested Bilateral Option Loans are requested to be made as Alternative
Currency Bilateral Loans, the Alternative Currency to be applicable thereto.
Each Requested Bank may, but shall have no obligation to, make such offers on
such terms and conditions as are satisfactory to such Requested Bank, and such
Borrower may, but shall have no obligation to, accept any such offers. No
Bilateral Option Loan may mature after the Termination Date.
(b) Each Borrower and Requested Bank shall separately agree
as to the procedures, documentation, lending office and other matters relating
to any Bilateral Option Loan.
3.2 Reports to Agent; Determination of Dollar Equivalents.
(a) The Borrower shall deliver to the Agent a report in respect of each
Bilateral Option Loan (a "Bilateral Option Loan Report") by 2:00 P.M. (New York
City time) on the date on which the applicable Borrower accepts any Bilateral
Option Loan, on the date on which any principal amount thereof is repaid prior
to the scheduled maturity date, or on the scheduled maturity date if payment
thereof is not made on such scheduled maturity date, specifying for such
Bilateral Option Loan the date on which such Bilateral Option Loan was or will
be made, such amount of principal is or will be repaid or such payment was not
made as the case may be; in the case of Alternative Currency Bilateral Loans,
the Alternative Currency thereof; and the principal amount of such Bilateral
Option Loan or principal prepayment or repayment or the amount paid (in the
case of any
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Alternative Currency Bilateral Loan, expressed in the Alternative Currency
therefor).
(b) Upon receipt of a Bilateral Option Loan Report with
respect to the acceptance of a Bilateral Option Loan, the Agent shall determine
the Dollar Equivalent thereof.
(c) If on any Borrowing Date on which after giving effect to
the Loans made on such date, the sum of the aggregate Loan Outstandings of all
the Banks plus the Aggregate Outstanding Bilateral Option Loans exceeds 85% of
the aggregate Commitments, then the Agent shall redetermine as of such
Borrowing Date, on the basis of the most recently delivered Bilateral Option
Loan Report for each Bilateral Option Loan, the Dollar Equivalent of each
Alternative Currency Bilateral Loan then outstanding. In addition, for so long
as the condition specified in the preceding sentence remains in effect, the
Agent shall determine, at the end of each fiscal quarter of the Company, on the
basis of the most recently delivered Bilateral Option Loan Report for each
Bilateral Option Loan, the Dollar Equivalent of each Alternative Currency
Bilateral Loan then outstanding.
(d) The Agent shall promptly notify the Company of each
Dollar Equivalent under this subsection 3.2.
3.3 Judgment Currency. If for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due from any Borrower
hereunder or under any of the Notes in the currency expressed to be payable
herein or under the Notes (the "specified currency") into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase the specified currency with such
other currency at the Agent's New York office on the Business Day preceding
that on which final judgment is given. The obligations of each Borrower in
respect of any sum due to any Bank or the Agent hereunder or under any Note
shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Business Day following
receipt by such Bank or the Agent (as the case may be) of any sum adjudged to
be so due in such other currency such Bank or the Agent (as the case may be)
may in accordance with normal banking procedures purchase the specified
currency with such other currency; if the amount of the specified currency so
purchased is less than the sum originally due to such Bank or the Agent, as the
case may be, in the specified currency, each Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Bank or the Agent, as the
case may be, against such difference, and if the amount of the specified
currency so purchased exceeds:
(a) the sum originally due to any Bank or the Agent, as the
case may be, and
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(b) any amounts shared with other Banks as a result of
allocations of such excess as a disproportionate payment to such Bank
under subsection 13.7,
such Bank or the Agent, as the case may be, agrees to remit such excess to the
applicable Borrower.
3.4 Repayments. Each Borrower shall repay to each Bank which
has made a Bilateral Option Loan on the maturity date of each Bilateral Option
Loan (such maturity date being that specified in the documentation referred to
in subsection 3.1(a)) the then unpaid principal amount of such Bilateral Option
Loan.
SECTION 4. BID LOANS
4.1 The Bid Loans. Any Borrower may borrow Bid Loans from
time to time on any Business Day during the period from the Closing Date until
the Termination Date, in the manner set forth in this Section 4 and in amounts
such that the aggregate Loan Outstandings of all the Banks at any time plus the
Aggregate Outstanding Bilateral Option Loans at such time will not exceed the
aggregate Commitments at such time, and provided, further, that no such Bid
Loan shall be made if, after giving effect thereto, any Bid Loans would mature
after the Termination Date.
4.2 Procedure for Bid Loans. (a) A Borrower shall request
Bid Loans by delivering a Bid Loan Request to the Agent, in writing, by telex
or facsimile transmission, or by telephone, confirmed by telex or facsimile
transmission, not later than 1:00 P.M. (New York City time) one Business Day
prior to the proposed Borrowing Date. Each Bid Loan Request may solicit bids
for Bid Loans in an aggregate principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and for not more than three
alternative maturity dates for such Bid Loans. The Agent shall promptly notify
each Bank by telex or facsimile transmission of the contents of each Bid Loan
Request received by it.
(b) Upon receipt of notice from the Agent of the contents of
a Bid Loan Request, any Bank that elects, in its sole discretion, to do so,
shall irrevocably offer to make one or more Bid Loans at a rate of interest
determined by such Bank in its sole discretion for each such Bid Loan. Any
such irrevocable offer shall be made by delivering a Bid Loan Offer to the
Agent, by telephone, immediately confirmed by telex or facsimile transmission,
before 9:30 A.M. (New York City time) on the proposed Borrowing Date, setting
forth the maximum amount of Bid Loans for each maturity date, and the aggregate
maximum amount for all maturity dates, which such Bank would be willing to make
(which amounts may, subject to subsection 4.1, exceed such Bank's Commitments)
and the rate of interest at which such Bank is willing to make each such Bid
Loan; the Agent shall advise the Borrower before 10:00 A.M. (New York City
time) on the proposed
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Borrowing Date of the contents of each such Bid Loan Offer received by it. If
the Agent in its capacity as a Bank shall, in its sole discretion, elect to
make any such offer, it shall advise the Borrower of the contents of its Bid
Loan Offer before 9:15 A.M. (New York City time) on the proposed Borrowing
Date.
(c) The Borrower shall before 10:30 A.M. (New York City
time) on the proposed Borrowing Date, in its absolute discretion, either:
(i) cancel such Bid Loan Request by giving the
Agent telephone notice to that effect, and the Agent shall
give prompt telephone notice thereof to the Banks and the Bid
Loans requested thereby shall not be made; or
(ii) accept one or more of the offers made by any
Bank or Banks by giving telephone notice to the Agent
(confirmed as soon as practicable thereafter by delivery to
the Agent of a Bid Loan Confirmation in writing, by telex or
by facsimile transmission) of the amount of Bid Loans for each
relevant maturity date to be made by each Bank (which amount
for each such maturity date shall be equal to or less than the
maximum amount for such maturity date specified in the Bid
Loan Offer of such Bid Loan Bank, and for all maturity dates
included in such Bid Loan Offer shall be equal to or less than
the aggregate maximum amount specified in such Bid Loan Offer
for all such maturity dates) and reject any remaining offers
made by Banks; provided, however, that (x) the Borrower may
not accept offers for Bid Loans for any maturity date in an
aggregate principal amount in excess of the maximum principal
amount requested in the related Bid Loan Request, (y) if the
Borrower accepts any of such offers, it must accept offers
strictly based upon pricing for such relevant maturity date
and no other criteria whatsoever and (z) if two or more Banks
submit offers for any maturity date at identical pricing and
the Borrower accepts any of such offers but does not wish to
(or by reason of the limitations set forth in subsection 4.1
or in clause (x) of this proviso, cannot) borrow the total
amount offered by such Banks with such identical pricing, the
Borrower shall accept offers from all of such Banks in amounts
allocated among them pro rata according to the amounts offered
by such Banks.
(d) If the Borrower accepts pursuant to clause (c) (ii)
above one or more of the offers made by any Bid Loan Bank or Bid Loan Banks,
the Agent shall notify before 11:00 A.M. (New York City time) each Bid Loan
Bank which has made such an offer,
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of the aggregate amount of such Bid Loans to be made on such Borrowing Date for
each maturity date and of the acceptance or rejection of any offers to make
such Bid Loans made by such Bid Loan Bank. Each Bid Loan Bank which is to make
a Bid Loan shall, before 12:00 Noon (New York City time) on the Borrowing Date
specified in the Bid Loan Request applicable thereto, make available to the
Agent at its office set forth in subsection 13.2 the amount of Bid Loans to be
made by such Bid Loan Bank, in immediately available funds. The Agent will
make such funds available to the Borrower at or before 2:00 P.M. (New York City
time) on such date at the Agent's aforesaid address. As soon as practicable
after each Borrowing Date, the Agent shall notify each Bank of the aggregate
amount of Bid Loans advanced on such Borrowing Date and the respective maturity
dates thereof.
4.3 Repayments. Each Borrower shall repay to the Agent for
the account of each Bid Loan Bank which has made a Bid Loan on the maturity
date of each Bid Loan (such maturity date being that specified by the Borrower
for repayment of such Bid Loan in the related Bid Loan Request) the then unpaid
principal amount of such Bid Loan. The Borrowers shall not have the right to
prepay any principal amount of any Bid Loan without the prior written consent
of the Bid Loan Bank which made such Bid Loan.
4.4 Interest on Bid Loans. Each Borrower which shall have
borrowed a Bid Loan shall pay interest on the unpaid principal amount of such
Bid Loan from the Borrowing Date to the stated maturity date thereof, at the
rate of interest determined pursuant to subsection 4.2 above (calculated on the
basis of a 360 day year for actual days elapsed), payable on the interest
payment date or dates specified by such Borrower for such Bid Loan in the
related Bid Loan Request. If all or a portion of the principal amount of any
Bid Loan shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue principal amount shall, without
limiting any rights of any Bank under this Agreement, bear interest from the
date on which such payment was due at a rate per annum which is 2% above the
rate which would otherwise be applicable to such Bid Loan until the scheduled
maturity date with respect thereto, and for each day thereafter at a rate per
annum which is 2% above the Alternate Base Rate until paid in full (as well
after as before judgment).
4.5 Obligations of Borrowers; Bid Loan Notes. (a) Each
Borrower agrees that each Bid Loan made by each Bid Loan Bank to such Borrower
pursuant hereto shall constitute the promise and obligation of such Borrower to
pay to the Agent, on behalf of such Bid Loan Bank, at the office of the Agent
specified in subsection 13.2, in lawful money of the United States of America
and in immediately available funds the aggregate unpaid principal amount of
each Bid Loan made by such Bid Loan Bank to such Borrower pursuant to
subsection 4.2, which amounts shall be due and payable (whether at maturity or
by
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acceleration) as set forth in the Bid Loan Request related to such Bid Loan and
in this Agreement.
(b) Each Borrower agrees that each Bid Loan Bank and the
Agent are authorized to record (i) the date and amount of each Bid Loan made by
such Bid Loan Bank to such Borrower pursuant to subsection 4.2, and (ii) the
date and amount of each payment or prepayment of principal of each such Bid
Loan, in the books and records of such Bid Loan Bank or the Agent, as the case
may be, and in such manner as is reasonable and customary for such Bank or the
Agent, as the case may be, and a certificate of an officer of such Bid Loan
Bank or the Agent, as the case may be, setting forth in reasonable detail the
information so recorded, shall constitute prima facie evidence of the accuracy
of the information so recorded; provided that the failure to make any such
recording shall not in any way affect the obligations of such Borrower
hereunder.
(c) Each Borrower agrees that, upon the request to the Agent
by any Bid Loan Bank at any time, the Bid Loans made by such Bid Loan Bank to
any Borrower shall be evidenced by a promissory note of such Borrower,
substantially in the form of Exhibit B with appropriate insertions (a "Bid Loan
Note"), payable to the order of such Bid Loan Bank and representing the
obligation of such Borrower to pay the unpaid principal amount of all Bid Loans
made by such Bid Loan Bank, with interest on the unpaid principal amount from
time to time outstanding of each Bid Loan evidenced thereby as prescribed in
subsection 4.4. Upon the request to the Agent by any such Bid Loan Bank at any
time, such Borrower shall execute and deliver to such Bid Loan Bank a Bid Loan
Note conforming to the requirements hereof and executed by a duly authorized
officer of such Borrower. Each Bid Loan Bank is hereby authorized to record
the date and amount of each Bid Loan made by such Bank, the maturity date
thereof, the date and amount of each payment of principal thereof and the
interest rate with respect thereto on the schedule annexed to and constituting
part of its Bid Loan Note, and any such recordation shall constitute prima
facie evidence of the accuracy of the information so recorded; provided,
however, that the failure to make any such recordation shall not affect the
obligations of such Borrower hereunder or under any Bid Loan Note. Each Bid
Loan Note shall be dated the Closing Date and each Bid Loan evidenced thereby
shall bear interest for the period from and including the Borrowing Date
thereof on the unpaid principal amount thereof from time to time outstanding at
the applicable rate per annum determined as provided in, and such interest
shall be payable as specified in, subsection 4.4.
SECTION 5. LOAN FACILITY COMMON PROVISIONS
5.1 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to
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the Eurodollar Rate determined for such Interest Period plus the Applicable
Margin.
(b) Each ABR Loan shall bear interest at a fluctuating rate
per annum equal to the Alternate Base Rate.
(c) Except as otherwise provided in subsection 4.4, if all or
a portion of (i) the principal amount of any Loan or (ii) any interest payable
thereon shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of overdue interest, the rate described
in paragraph (b) of this subsection plus 2%, in each case from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable on demand.
(e) Subject to the limitations set forth herein, each
Borrower may use the Loans by borrowing, prepaying and reborrowing the Loans,
all in accordance with the terms and conditions hereof.
5.2 Facility Fee. (a) The Company agrees to pay to the Agent
for the account of each Bank a facility fee for the period from and including
the date hereof to the Termination Date, computed at the rate per annum
determined as set forth in paragraph (b) of this subsection on the average
daily amount of the Commitment of such Bank during the period for which payment
is made, payable quarterly in arrears on the fifteenth day of each March, June,
September and December and on the Termination Date or such earlier date as the
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
(b) The rate per annum at which such facility fee under
paragraph (a) above shall be computed (the "Applicable Facility Fee Rate"), for
any day on which the long term senior unsecured debt of the Company is rated by
both S&P and Moody's, shall be the rate per annum under the caption "Facility
Fee Rate" (a "Facility Fee Rate") set forth below opposite the S&P and Moody's
ratings applicable to such debt on such day (or, if such ratings are set
opposite two different rates under said caption, then the Applicable Facility
Fee Rate shall be the lower of said two Facility Fee Rates):
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FACILITY FEE
RATE S&P MOODY'S
---------- --- -------
.1500% BB+ or lower Ba1 or lower
.1250% BBB- Baa3
.1000% BBB Baa2
.0800% BBB+ Baa1
.0600% A- or higher A3 or higher
provided that if on any day the long term senior unsecured debt of the Company
is rated by only one of S&P or Moody's, such rate will be determined based on
the rating by such rating agency, and provided, further, that if on any day the
long term senior unsecured debt of the Company is rated by neither S&P nor
Moody's, the Applicable Facility Fee Rate will be determined based on the
rating of such debt by a Substitute Rating Agency and will be the Facility Fee
Rate set forth above opposite the S&P and Moody's ratings comparable to the
Substitute Rating Agency's rating of such debt on such date, and provided,
further, that if on any day the long term senior unsecured debt of the Company
is rated by none of S&P, Moody's or any Substitute Rating Agency, the Company,
the Agent and the Banks will negotiate in good faith to determine an
alternative basis for calculating such rate consistent with the table set forth
above and, if agreement on such alternative basis is not reached with 30 days,
such rate will be calculated on an alternative basis determined by the Agent
and the Banks in their reasonable discretion consistent with the table above,
and until such alternative basis is determined such rate will be the rate last
determined as provided in the table above.
5.3 Termination or Reduction of Commitments; Change of
Control Date. (a) The Company shall have the right, upon not less than five
Business Days' notice to the Agent, to terminate the Commitments or, from time
to time, to reduce the amount of the Commitments, provided that no such
termination or reduction shall be permitted to the extent that, after giving
effect thereto and to any prepayments of Loans made on the effective date
thereof, the sum of the aggregate Loan Outstandings of all the Banks, plus the
Aggregate Outstanding Bilateral Option Loans would exceed the Commitments then
in effect. Any such partial reduction shall be in an amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce
permanently the Commitments then in effect.
(b) (i) In the event that a Change of Control Date shall
occur, (A) the Company shall, within 10 days after such Change of Control Date,
give each Bank notice thereof in writing describing in reasonable detail the
facts and circumstances
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giving rise thereto, and (B) such Bank, by written notice given to the Company
not later than 30 days after the Change of Control Date, may declare the
Commitments of such Bank to be terminated in full or reduced as of the date of
(or as of a later date specified in) such notice to the Company, and may
require that the Borrowers prepay as provided in this subsection 5.3 any Loans
payable to such Bank and outstanding on such date to the extent the principal
amount thereof exceeds such Bank's Commitment, if any, remaining after such
termination or reduction. To the extent such Bank so requires, the Borrowers
shall prepay such Loans on the 75th day after the date of the Company's notice
or, in the event such 75th day is not a Business Day, the Business Day next
succeeding such 75th day ("Prepayment Date").
(ii) On the Prepayment Date, the Borrowers shall prepay
the unpaid principal amount of the Loans payable to such Bank, without premium
or penalty, together with accrued interest on the amount prepaid to the
Prepayment Date.
(iii) Subsections 5.9(a), (b) and (c) shall not apply to
prepayments under this subsection 5.3(b).
(iv) Paragraph (a) of this subsection 5.3 hereof shall not
apply to any Commitment reductions pursuant to this paragraph (b).
(v) In the event that a Change of Control Date shall
occur, the Company shall not thereafter, without the prior written consent of
the Majority Banks, borrow any additional Loan (other than a Bilateral Option
Loan) in order to make, directly or indirectly, any payment or prepayment on
any Indebtedness subordinated as to the payment of principal and interest or on
liquidation to the prior payment of any of the Obligations.
(c) If all or a substantial part of the property, assets,
business or capital stock of any of National Medical Care, Inc., NMC Holding,
Inc., Bio-Medical Application Management or the Dearborn Division of the
Company is directly or indirectly conveyed, sold, leased, assigned or otherwise
disposed of (including by merger, consolidation, dividend, distribution, sale
of stock, liquidation or dissolution) by Grace New York or any of its
Subsidiaries (other than to Grace New York or any of its Subsidiaries) (a
"Disposition"), the Commitments shall automatically terminate on the earliest
effective date of any such Dispositions and the Borrowers shall immediately
prepay the Loans on such date without premium or penalty, together with accrued
interest on the amount prepaid to the date of such prepayment.
(d) The Commitments shall automatically terminate on the
date any of the commitments under the Existing Agreements are reduced,
cancelled or terminated.
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5.4 Prepayments. (a) Any Borrower may at any time and from
time to time upon at least four Business Days' irrevocable notice to the Agent,
in the case of Eurodollar Loans, or upon at least one Business Day's
irrevocable notice to the Agent, in the case of ABR Loans, prepay the Loans
(other than Bid Loans), in whole or in part, without premium or penalty
(subject to subsection 5.13), specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, ABR Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of any such notice the Agent shall promptly notify each Bank thereof.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein. Partial prepayments shall be in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof.
(b) If at any time, the Agent shall determine (which
determination shall be conclusive in the absence of manifest error) that the
sum of the aggregate Loan Outstandings of all the Banks plus the Aggregate
Outstanding Bilateral Option Loans exceeds the aggregate Commitments, the
Borrowers shall immediately prepay the Loans in an aggregate principal amount
equal to such excess.
(c) All Loans shall be immediately prepaid in full upon the
payment of any of the principal amount of any loans under the Existing
Agreements unless the amounts paid under the Existing Agreements are
immediately reborrowed under the Existing Agreements.
5.5 Conversion and Continuation Options. (a) Any Borrower
may elect at any time and from time to time (subject to subsection 5.13) to
convert its Eurodollar Loans to ABR Loans by giving the Agent at least two
Business Days' prior irrevocable notice of such election. Any Borrower may
elect at any time and from time to time to convert its ABR Loans to Eurodollar
Loans by giving the Agent irrevocable notice of such election (which notice
must be received by the Agent prior to 4:00 P.M., New York City time, three
Business Days prior to the requested conversion date). Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period or Interest Periods therefor. Upon receipt of any such notice the Agent
shall promptly notify each Bank thereof. All or any part of outstanding
Eurodollar Loans and ABR Loans may be converted as provided herein, provided
that (i) no Loan may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Agent or the Majority Banks have
determined that such a conversion is not appropriate, and (ii) any such
conversion may only be made if, after giving effect thereto, subsection 5.6
shall not have been contravened.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower thereof giving notice to the Agent, in
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accordance with the applicable provisions of the term "Interest Period" set
forth in subsection 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan may be continued as
such (i) when any Event of Default has occurred and is continuing and the Agent
or the Majority Banks have determined that such a continuation is not
appropriate, or (ii) if, after giving effect thereto, subsection 5.6 would be
contravened and provided, further, that if any Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
5.6 Minimum Amounts of Eurodollar Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or
a whole multiple of $1,000,000 in excess thereof.
5.7 Computation of Interest and Fees. (a) Interest on ABR
Loans, and facility fees shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. Interest on
Eurodollar Loans shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Agent shall as soon as practicable notify the
Borrowers and the Banks of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the Prime Rate shall
become effective as of the opening of business on the day on which such change
in the Prime Rate is announced. The Agent shall as soon as practicable notify
the Borrowers and the Banks of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrowers and the Banks in the absence of manifest error. The Agent shall,
at the request of the Company, deliver to the Company a statement showing in
reasonable detail the quotations and calculations used by the Agent in
determining any interest rate pursuant to subsections 5.1 and 5.7(a).
5.8 Inability to Determine Interest Rate. In the event that
prior to the first day of any Interest Period:
(a) the Agent shall have determined (which determination
shall be conclusive and binding upon the Borrowers) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
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(b) the Agent shall have received notice from the Majority
Banks that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to
such Banks (as conclusively certified by such Banks) of making or
maintaining their affected Loans during such Interest Period,
the Agent shall give telecopy or telephonic notice thereof to the Borrowers and
the Banks as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans shall be converted, on the
first day of such Interest Period, to ABR Loans. Until such notice has been
withdrawn by the Agent, no further Eurodollar Loans shall be made or continued
as such, nor shall any Borrower have the right to convert Loans to Eurodollar
Loans.
5.9 Pro Rata Treatment and Payments. (a) Each borrowing by
any Borrower of Revolving Credit Loans from the Banks hereunder, each payment
by the Company on account of any facility fee or utilization fee hereunder, and
any reduction of the Commitments of the Banks shall be made pro rata according
to the respective Commitment Percentages of the Banks.
(b) Whenever any payment received by the Agent or any Bank
under this Agreement or any Note is insufficient to pay in full all amounts
then due and payable to the Agent and the Banks under this Agreement and the
Notes, and the Agent has not received a Payment Sharing Notice (or if the Agent
has received a Payment Sharing Notice but the Event of Default specified in
such Payment Sharing Notice has been cured or waived), such payment shall be
distributed and applied by the Agent and the Banks in the following order:
first, to the payment of fees and expenses due and payable to the Agent in its
capacity as Agent under and in connection with this Agreement; second, to the
payment of all expenses due and payable under subsection 13.5, ratably among
the Banks in accordance with the aggregate amount of such payments owed to each
such Bank; third, to the payment of fees due and payable under subsections
5.2(a) and (b), ratably among the Banks in accordance with their Commitment
Percentages; fourth, to the payment of interest then due and payable on the
Loans, ratably among the Banks in accordance with the aggregate amount of
interest owed to each such Bank; and fifth, to the payment of the principal
amount of the Loans which is then due and payable, ratably among the Banks in
accordance with the aggregate principal amount owed to each such Bank.
(c) After the Agent has received a Payment Sharing Notice
which remains in effect, all payments received by the Agent under this
Agreement or any Note shall be distributed and applied by the Agent and the
Banks in the following order:
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first, to the payment of all amounts described in clauses first through third
of the foregoing paragraph (b), in the order set forth therein; and second, to
the payment of the interest accrued on and the principal amount of all of the
Loans, regardless of whether any such amount is then due and payable, ratably
among the Banks in accordance with the aggregate accrued interest plus the
aggregate principal amount owed to such Bank.
(d) All payments (including prepayments) to be made by any
Borrower hereunder and under the Notes, whether on account of principal,
interest, fees or otherwise, shall be made without set-off or counterclaim and
shall be made prior to 3:00 P.M., New York City time, on the due date thereof
(i) in the case of fees and Loans other than Bilateral Option Loans, to the
Agent, for the account of the Banks, at the Agent's office specified in
subsection 13.2, and (ii) in the case of Bilateral Option Loans made by any
Bank, to such Bank, at the Bank's office specified in Schedule I (or, with
respect to Alternative Currency Bilateral Loans, if different, at such other
office of the Bank that it shall designate), in each case in Dollars (or, with
respect to Alternative Currency Bilateral Loans, in the relevant Alternative
Currency) and in immediately available funds. If any payment hereunder becomes
due and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day (unless, with respect to any
payment on a Eurodollar Loan, the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day), and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension.
(e) Unless the Agent shall have been notified in writing by
the Bank prior to a Borrowing Date that such Bank will not make the amount of
any Loan it has committed to make on such date available to the Agent, the
Agent may assume that such Bank has made such amount available to the Agent on
such Borrowing Date, and the Agent may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. If such amount is
made available to the Agent on a date after such Borrowing Date, such Bank
shall pay to the Agent on demand an amount equal to the product of (i) the
daily average Federal Funds Effective Rate during such period, times (ii) the
amount of the Loan such Bank was committed to make, times (iii) a fraction the
numerator of which is the number of days that elapse from and including such
Borrowing Date to the date on which such Bank's Loan shall have become
immediately available to the Agent and the denominator of which is 360. A
certificate of the Agent submitted to any Bank with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error. If such Bank's Commitment Percentage of such borrowing is not in fact
made available to the Agent by such Bank within three Business Days of such
Borrowing Date, the Agent shall be entitled to recover such amount with
interest thereon at the rate per
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annum applicable to ABR Loans hereunder, on demand, from such Borrower.
5.10 Illegality. Notwithstanding any other provision herein,
if any change after the date hereof in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Bank to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Bank hereunder to make Eurodollar Loans, continue Eurodollar
Loans as such and convert ABR Loans to Eurodollar Loans shall forthwith be
cancelled and (b) such Bank's Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to ABR Loans on the respective last days
of the then current Interest Periods with respect to such Loans or within such
earlier period as required by law. If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Borrower of such Loan shall pay to such Bank such
amounts, if any, as may be required pursuant to subsection 5.13.
5.11 Requirements of Law. (a) In the event that any change
after the date hereof in any Requirement of Law or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such
Bank in respect thereof (except for taxes covered by subsection 5.12
and changes in taxes based upon or measured by income of such Bank);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Bank which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount which such Bank deems in its reasonable judgment to be material, of
making, converting into, continuing or maintaining Eurodollar Loans or to
reduce any amount receivable hereunder in respect thereof then, in any such
case, the Company shall promptly pay such Bank, upon its demand, any additional
amounts necessary to compensate such Bank for such increased cost or reduced
amount receivable. If any Bank becomes entitled to claim any additional
amounts pursuant to this
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subsection, it shall promptly notify the Company, through the Agent, of the
event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this subsection setting forth the
calculation thereof in reasonable detail (as determined by such Bank in its
reasonable discretion) submitted by such Bank, through the Agent, to the
Company shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Notes
and all other amounts payable hereunder.
(b) In the event that any Bank shall have determined that any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Bank or any
corporation controlling such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Bank's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Bank
or such corporation could have achieved but for such change or compliance
(taking into consideration such Bank's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, after submission by such Bank to the Company (with a
copy to the Agent) of a written request therefor, the Company shall pay to such
Bank such additional amount or amounts as will compensate such Bank for such
reduction. A certificate as to any additional amount payable pursuant to this
subsection setting forth the calculation thereof in reasonable detail (as
determined by such Bank in its reasonable discretion) through the Agent, to the
Company shall be conclusive in the absence of manifest error.
(c) Upon request by any Bank, through the Agent, from time to
time, the Borrowers shall pay the cost of all Eurocurrency Reserve Requirements
applicable to the Eurodollar Loans made by such Bank. If a Bank is or becomes
entitled to receive payments in respect of Eurocurrency Reserve Requirements,
pursuant to this subsection 5.11(c), it shall promptly notify the Borrowers
thereof through the Agent. A certificate as to the amount of such Eurocurrency
Reserve Requirements setting forth the calculation thereof in reasonable detail
(as determined by such Bank in its reasonable discretion) submitted by such
Bank, through the Agent, to the Borrowers shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
5.12 Taxes. (a) All payments made by any Borrower under
this Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by
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any Governmental Authority, excluding, in the case of the Agent and each Bank,
net income taxes and franchise taxes (imposed in lieu of net income taxes) that
would not have been imposed on the Agent or such Bank, as the case may be, in
the absence of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and the Agent or such Bank
(other than a connection arising solely from the Agent or such Bank having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any Notes) or any political subdivision or
taxing authority thereof or therein (all such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions and withholdings being hereinafter
called "Taxes"). If any Taxes are required to be withheld from any amounts
payable to the Agent or any Bank hereunder or under any Notes, the amounts so
payable to the Agent or such Bank shall be increased to the extent necessary to
yield to the Agent or such Bank (after payment of all Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified
in this Agreement and the Notes. Whenever any Taxes are payable by any
Borrower in respect of any payment made hereunder, as promptly as possible
thereafter any Borrower shall send to the Agent for its own account or for the
account of such Bank, as the case may be, a certified copy of an original
official receipt received by such Borrower showing payment thereof. If such
Borrower fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to the Agent the required receipts or other required documentary
evidence, such Borrower shall indemnify the Agent and the Banks for any
incremental taxes, interest or penalties that may become payable by the Agent
or any Bank as a result of any such failure. The agreements in this subsection
shall survive the termination of this Agreement and the payment of the Notes
and all other amounts payable hereunder.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to the
Company and the Agent (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the case may
be, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form. Each such Bank also agrees to deliver to the Company and the
Agent two further copies of the said Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms or other manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Company, and such extensions or renewals
thereof as may reasonably be requested by the Company or the Agent, unless in
any such case an event (including, without limitation, any change in treaty,
law or regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or which
would prevent such Bank from duly completing and delivering any such form with
respect to it and
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such Bank so advises the Company and the Agent. Such Bank shall certify (i) in
the case of a Form 1001 or 4224, that it is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes and (ii) in the case of a Form W-8 or W-9, that it is entitled to
an exemption from United States backup withholding tax.
5.13 Indemnity. Each Borrower agrees to indemnify each Bank
and to hold each Bank harmless from any loss or expense which such Bank may
sustain or incur as a consequence of (a) default by any Borrower in payment
when due of the principal amount of or interest on any Eurodollar Loan, (b)
default by any Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after such Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (c)
default by any Borrower in making any prepayment after such Borrower has given
a notice thereof in accordance with the provisions of this Agreement or (d) the
making of a payment or prepayment of Eurodollar Loans on a day which is not the
last day of an Interest Period with respect thereto, including, without
limitation, in each case, any such loss or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained. This covenant shall survive the
termination of this Agreement and the payment of the Loans or Notes, if any,
and all other amounts payable hereunder.
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement, each of the
Company and Grace New York represents and warrants to the Agent and each Bank
that:
6.1 Corporate Existence; Compliance with Law. Each Loan
Party (a) is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, (b) is duly
qualified and in good standing in each jurisdiction wherein, in the opinion of
the Company and Grace New York, the conduct of its business or the ownership of
its properties requires such qualification and (c) is in compliance with all
Requirements of Law, except to the extent that the failure to comply with
paragraph (a), (b) or (c) of this subsection would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.2 Corporate Power, Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority to make, deliver and
perform its obligations under the Loan Documents to which it is or will be a
party, and has taken all necessary corporate action to authorize (i) in the
case of the Borrowers, the borrowings under this Agreement and any Notes to
which it is or will be a party on the terms and conditions
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hereof and thereof and (ii) the execution, delivery and performance of this
Agreement and the Loan Documents to which it is or will be a party. This
Agreement has been, and any Note and the other Loan Documents to which it is or
will be a party will be, duly executed and delivered on behalf of each relevant
Loan Party. This Agreement constitutes, and each of the Notes, if any, and the
other Loan Documents when executed and delivered will constitute, a legal,
valid and binding obligation of the Loan Party thereto, and enforceable against
such Loan Party in accordance with its terms, such enforceability subject to
limitations under any applicable bankruptcy, insolvency, moratorium or other
laws affecting creditors' rights and by general equitable principles (whether
applied in a proceeding in equity or at law). No consent of any other party
(including stockholders of Grace New York) and no consent, license, approval or
authorization of, or registration or declaration with, any Governmental
Authority is required to be obtained by any Loan Party in connection with the
execution, delivery, performance, validity or enforceability of this Agreement
and any Notes.
6.3 No Legal Bar. The execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents, the borrowings
hereunder and the use of the proceeds thereof, will not violate or contravene
any material provision of any Requirement of Law or material Contractual
Obligation of Grace New York, the Company or any of its Subsidiaries and will
not result in, or require, the creation or imposition of any material Lien
(other than Liens permitted under subsection 9.2) on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.
6.4 No Material Litigation. There is no legal action,
administrative proceeding or arbitration (whether or not purportedly on behalf
of Grace New York or the Company or any of its Subsidiaries) presently pending,
or to the knowledge of Grace New York or the Company threatened, against or
affecting Grace New York or the Company or any of its Subsidiaries which would
reasonably be expected to have a Material Adverse Effect, except that the
foregoing is subject to the fact that, as discussed in footnote (c) to the
financial statements included in Grace New York's Quarterly Report on Form 10-Q
for the period ended September 30, 1995 referred to in subsection 6.6, the
Company and Grace New York cannot predict at this time the results and impact,
if any, of the governmental investigation of Grace New York's Subsidiary,
National Medical Care, Inc., referred to in that footnote, and related claims
and litigation.
6.5 Ownership of Properties. Each of Grace New York, the
Company and its Subsidiaries is the tenant under valid leases or has good title
to substantially all its properties and assets, real and personal (except
defects in title and other matters that would not reasonably be expected to
have a Material Adverse Effect), subject to no Lien except as permitted to
exist under subsection 9.2.
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6.6 Financial Condition. The consolidated balance sheets of
Grace New York and its Subsidiaries as at December 31, 1994 and December 31,
1993 and the related consolidated statements of operations, shareholders'
equity and of cash flows (together with the related notes), included or
incorporated in Grace New York's Annual Report on Form 10-K filed with the SEC
for the fiscal year ended December 31, 1994, present fairly in all material
respects the financial position of Grace New York and its Subsidiaries as at
such dates and the results of their operations and their cash flows for the
fiscal years then ended. The unaudited consolidated balance sheet of Grace New
York and its Subsidiaries as at September 30, 1995 and the related unaudited
consolidated statement of operations for the three- and nine-month interim
periods, and the related unaudited consolidated statement of cash flows for the
nine-month interim period, ended on such date, included in Grace New York's
Quarterly Report on Form 10-Q filed with the SEC for such period, present
fairly in all material respects the financial position of Grace New York and
its Subsidiaries as at such date and the results of their operations and their
cash flows for the three- and nine-month periods, respectively, then ended.
All of such financial statements, including the notes to such financial
statements, have been prepared in conformity with GAAP (subject, in the case of
interim statements, to normal year-end adjustments and to the fact that such
financial statements may be abbreviated and may omit footnotes or contain
incomplete footnotes) consistently applied throughout the periods involved
except as stated therein.
6.7 Disclosure of Contingent Liabilities. To the best of the
knowledge and belief of Grace New York, neither Grace New York nor any of its
Subsidiaries has any contingent obligation, liability for taxes, long-term
leases, unusual forward or other liabilities, which are material in amount in
relation to the consolidated financial condition of Grace New York and its
Subsidiaries taken as a whole and which are not disclosed in the financial
statements (including the related notes) described in subsection 6.6 above.
6.8 ERISA. Each Plan that is intended to qualify under
Section 401(a) of the Code satisfies in all material respects the applicable
requirements for qualification under that Code Section. No Reportable Event
has occurred and is continuing with respect to any such Plan, and neither Grace
New York nor any of its Subsidiaries has incurred any liability to the PBGC
under Section 4062 of ERISA with respect to any such Plan that would reasonably
be expected to have a Material Adverse Effect.
6.9 Certain Federal Regulations. Neither the Company nor any
of its Subsidiaries is engaged in or will engage in the business of extending
credit for the purposes of "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation U of the
Board, and no part of the proceeds of any Loan will be used for any purpose
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which violates, or which would be inconsistent with, the provisions of
Regulation U or X of the Board.
6.10 No Default. Neither Grace New York nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which would reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
6.11 Taxes. (a) Each of Grace New York and its Subsidiaries
has filed or caused to be filed all tax returns which, to the knowledge of
Grace New York, are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity
of which are currently being contested in good faith by appropriate proceedings
and with respect to which adequate reserves to the extent required in
conformity with GAAP, have been provided on the books of Grace New York or its
Subsidiaries, as the case may be) except insofar as the failure to make such
filings or payments would not reasonably be expected to have a Material Adverse
Effect; and (b) no tax Lien (other than a Lien permitted under subsection
9.2(a)) has been filed, and, to the knowledge of Grace New York, no claim is
being asserted, with respect to any such tax, fee or other charge which would
reasonably be expected to have a Material Adverse Effect.
6.12 Investment Company Act; Other Regulations. None of
Grace New York, the Company or any of its Subsidiaries is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended. None of Grace New
York, the Company or any other Borrower is subject to regulation under any
Federal or State statute or regulation which limits its ability to incur
Indebtedness.
6.13 Purpose of Loans. The proceeds of the Loans shall be
used by the Borrowers for general corporate purposes.
6.14 Environmental Matters. To the best of the knowledge of
Grace New York, the operations of Grace New York and its Subsidiaries and all
parcels of real estate owned or operated by Grace New York or its Subsidiaries
are in compliance with all Environmental Laws, except where the failure to so
comply would not reasonably be expected to have a Material Adverse Effect.
6.15 Principal Subsidiaries. Set forth on Schedule III are
all of the Principal Subsidiaries as of the date hereof.
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SECTION 7. CONDITIONS PRECEDENT
7.1 Conditions to Effectiveness. The parties hereto
acknowledge that the effectiveness of this Agreement is subject to the
satisfaction of the following conditions precedent on or prior to December 29,
1995:
(a) Loan Documents. The Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of each
of the Loan Parties, with a counterpart for each Bank, (ii) for the
account of each Bank so requesting, a Revolving Credit Note and a Bid
Loan Note conforming to the requirements hereof and executed by a duly
authorized officer of the Borrowers and (iii) an incumbency
certificate of each of the Loan Parties which covers such officers.
(b) Corporate Proceedings. The Agent shall have received,
with a counterpart for each Bank, a copy of the resolutions, in form
and substance satisfactory to the Agent, of the Board of Directors of
each of the Loan Parties authorizing (i) the execution, delivery and
performance of the Loan Documents to which it is or will be a party
and (ii) the borrowings contemplated hereunder (in the case of each
Borrower), certified by the Secretary or an Assistant Secretary of
such Loan Party as of the Closing Date, which certificate shall state
that the resolutions thereby certified have not been amended,
modified, revoked or rescinded and shall be in form and substance
satisfactory to the Agent.
(c) Fees. The Agent shall have received the fees to be
received on the Closing Date referred to in subsection 5.2.
(d) Legal Opinions. The Agent shall have received, with a
counterpart for each Bank, the following executed legal opinions:
(i) the executed legal opinion of counsel to the
Company and Grace New York, who may be the General Counsel of
the Company, substantially in the form of Exhibit F-1;
(ii) to the extent required pursuant to
subsection 13.15(a)(ii), the executed legal opinion of counsel
to any other Borrower, in form and substance reasonably
satisfactory to the Agent; and
(iii) the executed legal opinion of Xxxxxxx Xxxxxxx
& Xxxxxxxx, counsel to the Agent, substantially in the form of
Exhibit F-2.
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Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Agent may
reasonably require.
(e) Officer's Certificate. The Agent shall have received,
with a counterpart for each Bank, a certificate respecting accuracy of
representations and warranties, the absence of events having a
Material Adverse Effect and the absence of Defaults and Events of
Default, substantially in the form of Exhibit G hereto, signed by a
Responsible Officer on behalf of the Company and Grace New York.
(f) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Agent, and the Agent shall
have received such other documents and legal opinions in respect of
any aspect or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
7.2 Conditions to Each Loan. The agreement of each Bank to
make any Loan requested to be made by it on any date is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by each of the Loan Parties in or
pursuant to subsections 6.1, 6.2, 6.3, 6.5, 6.9, 6.10, 6.11, 6.12 and
6.13 of this Agreement and in or pursuant to any other Loan Document
to which it is or will be a party, shall be true and correct in all
material respects on and as of such date as if made on and as of such
date, and the representation and warranty made pursuant to subsection
6.6 shall be true and correct in all material respects with respect to
the financial statements most recently delivered pursuant to
subsection 8.1, mutatis mutandis, as if such financial statements
delivered pursuant to subsection 8.1 were the financial statements
referred to in subsection 6.6.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
Each borrowing by the Borrowers hereunder shall constitute a representation and
warranty by the Loan Parties as of the date of such Loan that the conditions
contained in this subsection 7.2 have been satisfied.
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SECTION 8. AFFIRMATIVE COVENANTS
Each of the Company and Grace New York hereby agrees that, so
long as the Commitments remain in effect, any Note remains outstanding and
unpaid or any other amount is owing to any Bank or the Agent hereunder, each of
the Company and Grace New York shall and the Company (except in the case of
delivery of financial information, reports and notices) shall cause each of its
Principal Subsidiaries to:
8.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within 120 days
after the end of each fiscal year of Grace New York, a copy of the
consolidated balance sheet of Grace New York and its Subsidiaries as
at the end of such year and the related consolidated statements of
operations, shareholders' equity and cash flows for such year (as
included or incorporated by reference in Grace New York's Annual
Report on Form 10-K or successor form filed with the SEC for each such
fiscal year), setting forth in each case in comparative form the
figures for the previous year, reported on without a "going concern"
or like qualification or exception, or qualification arising out of
the scope of the audit, by Price Waterhouse or other independent
certified public accountants of nationally recognized standing not
unacceptable to the Majority Banks; and
(b) as soon as available, but in any event not later than 75
days after the end of each of the first three quarterly periods of
each fiscal year of Grace New York, the unaudited consolidated balance
sheet of Grace New York and its Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of
operations for such quarter and the related unaudited consolidated
statements of operations and cash flows for the portion of the fiscal
year through the end of such quarter (as included in Grace New York's
Quarterly Report on Form 10-Q or successor form filed with the SEC for
each such period), setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects when considered in
relation to the consolidated financial statements of Grace New York
and its Subsidiaries.
All such financial statements shall be prepared in conformity with GAAP
(subject, in the case of interim statements, to normal year-end adjustments and
to the fact that such financial statements may be abbreviated and may omit
footnotes or contain incomplete footnotes) applied consistently throughout the
periods reflected therein and with prior periods (except as disclosed therein).
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8.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsection 8.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except
as specified in such certificate.
(b) concurrently with the delivery of the financial
statements referred to in subsections 8.1(a) and 8.1(b), a certificate
of a Responsible Officer of Grace New York in his capacity as such
officer stating that, to the best of such Officer's knowledge, each of
the Borrowers and Grace New York during such period has observed or
performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and in the Notes and the
other Loan Documents to which it is a party to be observed, performed
or satisfied by it, and that such Officer has obtained no knowledge of
any Default or Event of Default except as specified in such
certificate and showing in detail the calculation of compliance with
subsections 9.1 and 9.2;
(c) concurrently with the delivery of the financial
statements referred to in subsection 8.1(a), a list of the Principal
Subsidiaries as of the corresponding fiscal year end, certified by a
Responsible Officer in his capacity as such officer;
(d) within ten Business Days after the same are sent, copies
of all financial statements and reports which Grace New York sends to
its shareholders generally relating to the business of Grace New York
and its Subsidiaries, and within ten Business Days after the same are
filed, copies of all reports on Forms 10-K, 10-Q, 8-K, 8 and 10, and
Schedules 13D, 13E-3, 13E-4, 13-G, 14D-1 and 14D-9, or successor forms
or schedules, and the final prospectus in each effective registration
statement (other than registration statements on Form S-8) and each
post-effective amendment to such registration statement which Grace
New York may make to, or file with, the SEC; and
(e) promptly, subject to reasonable confidentiality
requirements agreed to by the Company and such Bank, such additional
financial and other information as any Bank may from time to time
reasonably request.
8.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently
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being contested in good faith by appropriate proceedings and reserves, to the
extent required in conformity with GAAP with respect thereto, have been
provided on the books of Grace New York or its Subsidiaries, as the case may
be, and except to the extent that the failure to so pay, discharge or otherwise
satisfy such obligations would not result in a Default or Event of Default
under Section 10(e)(i).
8.4 Conduct of Business and Maintenance of Existence.
Preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all corporate rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except
as otherwise permitted pursuant to subsection 9.3; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
8.5 Insurance. Maintain with financially sound and reputable
insurance companies (which may include, without limitation, captive insurers),
such insurance coverage as is reasonable for the business activities of Grace
New York and its Subsidiaries; and furnish to the Agent, upon written request,
such information as the Agent may reasonably request as to its insurance
program.
8.6 Inspection of Property, Books and Records; Discussions.
Permit representatives of any Bank (subject to reasonable safety and
confidentiality requirements) to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of Grace New York and
its Subsidiaries with officers and employees of Grace New York and its
Subsidiaries and, provided representatives of Grace New York are given an
opportunity to participate, with its independent certified public accountants.
8.7 Notices. Promptly give notice to the Agent and each Bank
of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Grace New York or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between Grace New York or any of its Subsidiaries and any Governmental
Authority, which in either case, would reasonably be expected to have
a Material Adverse Effect;
(c) any litigation or proceeding affecting Grace New York or
any of its Subsidiaries in which the then reasonably
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anticipated exposure of Grace New York and its Subsidiaries is
$10,000,000 or more and not covered by insurance, or in which
injunctive or similar relief is sought which is then reasonably
anticipated to have an adverse economic effect on Grace New York and
its Subsidiaries of $10,000,000 or more;
(d) the following events, as soon as possible and in any
event within 30 days after the Company or Grace New York knows or has
reason to know thereof: (i) the occurrence or expected occurrence of
any Reportable Event with respect to any Plan, or any withdrawal from,
or the termination, Reorganization or Insolvency of any Multiemployer
Plan or (ii) the institution of proceedings or the taking of any other
action by the PBGC or the Company or Grace New York or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan, where in connection with any of the events described in (i)
or (ii) above the liability to the Company or a Commonly Controlled
Entity would reasonably be expected to be $10,000,000 or more;
(e) any upgrading, downgrading or cessation in the rating of
the long term senior unsecured debt of the Company by the rating
agency or agencies whose rating on such debt is then being used to
determine the Applicable Margin and the Facility Fee Rate; and
(f) a development or event which would reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action each of the Company and Grace New York proposes
to take with respect thereto.
8.8 Environmental Laws.
(a) Comply with all Environmental Laws and obtain and comply
with and maintain any and all licenses, approvals, registrations or permits
required by Environmental Laws, except to the extent that failure to do so
would not be reasonably expected to have a Material Adverse Effect; and
(b) Defend, indemnify and hold harmless the Agent and the
Banks, and their respective employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the
violation of or noncompliance with any Environmental Laws applicable to the
real property owned or operated by the Company, Grace New York or any of the
Company's Subsidiaries, or any
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orders, requirements or demands of Governmental Authorities related thereto,
including, without limitation, attorney's and consultant's fees, investigation
and laboratory fees, court costs and litigation expenses, except to the extent
that any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor.
SECTION 9. NEGATIVE COVENANTS
Grace New York hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid or any other amount
is owing to any Bank or the Agent hereunder, it shall not, and (except with
respect to subsections 9.1 and 9.5(b)) shall not permit any of its Subsidiaries
to, directly or indirectly:
9.1 Financial Condition Covenants.
(a) Consolidated Debt to Total Capitalization. Permit the
ratio of Consolidated Debt to Total Capitalization at the end of any fiscal
quarter after the Closing Date to be greater than 60%.
(b) Interest Coverage. Permit for any period of four
consecutive fiscal quarters ending on the last day of any fiscal quarter of the
Company commencing with September 30, 1994 the ratio of EBIT to Consolidated
Interest Expense to be less than 2.0 to 1.0.
9.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues (which property,
assets or revenues are or would be reflected from time to time on the
consolidated financial statements of Grace New York and its Subsidiaries in
accordance with GAAP), whether now owned or hereafter acquired, except for:
(a) Liens for taxes or other governmental charges not yet due
or which are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on
the books of Grace New York or its Subsidiaries, as the case may be,
to the extent required in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, vendors', landlords', brokers', bankers' and other like
Liens arising in the ordinary course of business relating to
obligations which are not overdue for a period of more than 60 days or
which are being contested in good faith and Liens arising out of
judgments or awards that are either discharged within 60 days after
entry or execution of which has been stayed pending the outcome of
appeal or review proceedings;
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(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers
under insurance or self-insurance arrangements;
(d) pledges, deposits and similar arrangements in connection
with or to secure performance of bids, tenders, leases and other
deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business and contractual rights of
other Persons to make set-offs and to require security in connection
with letters of credit, currency, commodity and interest rate
contracts, surety bonds, leases, banking and brokerage agreements and
other transactions in the ordinary course of business;
(e) leases, easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which
would not reasonably be expected to have a Material Adverse Effect;
(f) Liens on the property, assets or revenues of a Person
which becomes a Subsidiary after the date hereof, to the extent that
(i) such Liens existed at the time such Person became a Subsidiary and
were not created in anticipation thereof, (ii) any such Lien is not
extended to cover any property, assets or revenues of such Person
after the time such Person becomes a Subsidiary, and (iii) the amount
of Indebtedness secured thereby is not thereafter increased;
(g) Liens arising in connection with (i) industrial
development, pollution control or other tax exempt financing
transactions, provided that such Liens do not at any time
encumber any property other than the property financed by such
transaction and other property, assets or revenues related to the
property so financed on which Liens are customarily granted in
connection with such transactions, or (ii) conveyances of any
production payment or other obligation to make a production payment
(A) which is to be made solely from production from oil, gas or other
underground mineral properties dedicated thereto or (B) as to which
production payment amount the obligee's sole recourse is to such
properties;
(h) Liens (including, without limitation, Liens incurred in
connection with Capitalized Leases, operating leases and
sale-leaseback transactions) securing Indebtedness of Grace New York
and its Subsidiaries incurred to finance the acquisition of fixed or
capital assets, and refinancings thereof, provided that (i) such Liens
do not at
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any time encumber any property other than the property financed by
such Indebtedness and other property, assets or revenues related to
the property so financed on which Liens are customarily granted in
connection with such financings or refinancings, and (ii) the
principal amount of Indebtedness secured by any such Lien shall at no
time exceed 100% of the greater of the original purchase price of such
property at the time it was acquired and the fair market value of such
property as reasonably determined by a Responsible Officer of the
Company in good faith thereafter, plus fees and other costs related
to the financing or refinancing thereof which have been agreed upon
in an arm's length manner;
(i) Liens incurred in connection with accounts receivable
sale transactions entered into by Grace New York or its Subsidiaries;
(j) Liens securing Contractual Obligations of any Subsidiary
to Grace New York, the Company or any Domestic Subsidiary;
(k) Liens on the property, assets or revenues of any Foreign
Subsidiary; and
(l) Liens (not otherwise permitted hereunder) which secure
obligations in an aggregate amount at any time outstanding not
exceeding an amount equal to 5% of the amount recorded opposite the
caption "Properties and equipment, net" (or the equivalent caption) on
the consolidated balance sheet of Grace New York and its Subsidiaries
most recently delivered to the Agent pursuant to subsection 8.1.
9.3 Limitation on Fundamental Changes. Convey, sell, lease,
assign, transfer or otherwise dispose of (including by merger, consolidation,
sale of stock, liquidation or dissolution) all or substantially all of the
property, assets or business of Grace New York and its Subsidiaries taken as a
whole.
9.4 Limitation on Asset Transfers to Foreign Subsidiaries.
With respect to Grace New York or any Domestic Subsidiary, convey, sell, lease,
assign, transfer or otherwise dispose of (collectively, a "transfer") any of
its property, business or assets (including, without limitation leasehold
interests), whether now owned or hereafter acquired, to any Foreign Subsidiary,
except such transfers which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
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9.5 Limitation on Subordinated Debt. Permit any Subsidiary
of Grace New York (other than the Company) to create, incur, assume or suffer
to exist any subordinated indebtedness other than (a) subordinated indebtedness
of a Person which becomes a Subsidiary after the date hereof to the extent such
indebtedness existed at the time such Person became a Subsidiary and was not
incurred in anticipation thereof and any refinancings of such indebtedness
after such time so long as the principal amount thereof is not increased or (b)
subordinated indebtedness of such Subsidiary held by Grace New York or any
other Subsidiary of Grace New York.
SECTION 10. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan
or Note when due in accordance with the terms thereof or hereof; or
any Borrower shall fail to pay any interest on any Loan or Note, or
any other amount payable hereunder, within five Business Days after
any such interest or other amount becomes due in accordance with the
terms thereof or hereof; or
(b) Any representation or warranty made, or pursuant to
subsection 7.2, deemed made, by any Loan Party herein or in any other
Loan Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect in
any material adverse respect on or as of the date made or deemed made;
or
(c) Grace New York or any Subsidiary shall default in the
observance or performance of any agreement contained in subsection
9.1, 9.3, 9.4 or 9.5; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement (other
than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days; or
(e) Grace New York or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on, or any other
amount payable with respect to, any (A) Domestic Indebtedness (other
than the Notes and Loans) in an aggregate principal amount for all
such Domestic Indebtedness of $10,000,000 or more, or (B) Foreign
Subsidiary Indebtedness (other than the Notes and Loans) in an
aggregate principal amount for all such Foreign Subsidiary
Indebtedness of $20,000,000 or more, beyond the period of grace (not
to exceed 30 days), if any, provided in
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the instrument or agreement under which such Indebtedness was created;
or (ii) default in the observance or performance of any other
agreement relating to any such Indebtedness in the amounts specified
in clause (i) above or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall
occur or condition exist in any case which continues uncured or
unwaived (and, if waived, without any change in the material terms of
such Indebtedness) after the expiration of all applicable grace
periods, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, with
the giving of notice if required, such Indebtedness to become due
prior to its stated maturity;
(f) (i) Grace New York or any Principal Subsidiary shall
commence any case, proceeding or other action (A) under any existing
or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or
Grace New York or any such Principal Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against Grace New York or any such Principal Subsidiary any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall
be commenced against any Grace New York or any such Principal
Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry
of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) Grace New York or any such Principal Subsidiary
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii) or (iii) above; or (v) Grace New York or any such Principal
Subsidiary shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA
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or Section 4975 of the Code) involving any Plan, (ii) any "accumulated
funding deficiency" (as defined in Section 302 of ERISA), whether or
not waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or judicial proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of judicial proceedings or
appointment of a trustee is, in the reasonable opinion of the Majority
Banks, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) the Company or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Majority
Banks is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist, with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to subject
the Company or any of its Subsidiaries to any tax, penalty or other
liabilities which in the aggregate would have a Material Adverse
Effect; or
(h) One or more judgments or decrees shall be entered against
Grace New York or any of its Subsidiaries in aggregate amounts (not
paid or fully covered by insurance) of $10,000,000 or more and all
such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days from the entry thereof;
or
(i) Grace New York shall cease to own directly or indirectly
of record and beneficially free and clear of Liens at least 75% of the
shares of the issued and outstanding capital stock of the Company;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i), (ii) or (iii) of paragraph (f) above with respect to any of the
Borrowers, automatically the Commitments to such Borrower shall immediately
terminate and the Loans made to such Borrower hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes of such
Borrower shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Majority Banks, the Agent may, or upon the request
of the Majority Banks, the Agent shall, by notice to the Company declare the
Commitments of any or all of the Borrowers to be terminated forthwith,
whereupon such Commitments shall immediately terminate; and (ii) with the
consent of the Majority Banks, the Agent may, or upon the request of the
Majority Banks, the Agent shall, by notice of default to the Company and Grace
New York, declare the Loans hereunder made to any or all of the Borrowers
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(with accrued interest thereon) and all other amounts owing by such Borrower
under this Agreement and the Notes of such Borrower to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
SECTION 11. THE AGENT
11.1 Appointment. Each Bank hereby irrevocably designates
and appoints Chemical as the Agent of such Bank under this Agreement and the
other Loan Documents, and each such Bank irrevocably authorizes Chemical, as
the Agent for such Bank, to take such action on its behalf under the provisions
of this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Agent by the terms of
this Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
11.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
11.3 Exculpatory Provisions. Neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Agent under or in connection with, this Agreement or
any other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the Notes or any other Loan
Document or for any failure of any Loan Party to perform its obligations
hereunder or thereunder. The Agent shall not be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained
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in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Loan Party.
11.4 Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company, Grace New York or any
other Borrower), independent accountants and other experts selected by the
Agent. The Agent may deem and treat the payee of any Note as the owner thereof
for all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Majority Banks as it deems appropriate or it shall first be indemnified to
its satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes and the other Loan
Documents in accordance with a request of the Majority Banks, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Banks and all future holders of the Notes.
11.5 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or any Loan Party
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give notice thereof to the Banks. The
Agent shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Majority Banks; provided that unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.
11.6 Non-Reliance on Agent and Other Banks. Each Bank
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Loan Parties, shall be deemed
to constitute any representation or warranty by the Agent to any Bank. Each
Bank represents to the Agent that it has, independently and without reliance
upon the Agent or any other Bank, and based on such documents and information
as it has deemed appropriate, made
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its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and made
its own decision to make its Loans hereunder and enter into this Agreement.
Each Bank also represents that it will, independently and without reliance upon
the Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Banks by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Loan Parties which may come
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
11.7 Indemnification. The Banks agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Loan Parties and
without limiting the obligation of Grace New York, the Company and any other
Borrower to do so), ratably according to the respective amounts of their
Commitments as in effect on the date on which the claim for indemnity by the
Agent is sought, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Notes) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Agent under or in connection with
any of the foregoing; provided that no Bank shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Notes and all other amounts
payable hereunder.
11.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with Grace New York, the Company or any other Borrower as
though the Agent were not the Agent hereunder and under the other Loan
Documents. With respect to its Loans made or renewed by it and any Note issued
to it, the Agent shall have the same rights and powers under this Agreement and
the other Loan Documents as any Bank and may exercise the
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same as though it were not the Agent, and the terms "Bank" and "Banks" shall
include the Agent in its individual capacity.
11.9 Successor Agent. The Agent may resign as Agent upon 10
days' notice to the Banks. If the Agent shall resign as Agent under this
Agreement and the other Loan Documents, then the Majority Banks shall appoint
from among the Banks a successor agent for the Banks, which successor agent
shall be approved by the Company, whereupon such successor agent shall succeed
to the rights, powers and duties of the Agent, and the term "Agent" shall mean
such successor agent effective upon its appointment, and the former Agent's
rights, powers and duties as Agent shall be terminated, without any other or
further act or deed on the part of such former Agent or any of the parties to
this Agreement or any holders of the Notes. After any retiring Agent's
resignation as Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the other Loan Documents.
SECTION 12. GUARANTEES
12.1 Grace New York Guarantee. Grace New York hereby
unconditionally and irrevocably guarantees to the Agent and the Banks the
prompt and complete payment and performance by each of the Borrowers when due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations owing to the Agent and the Banks by such Borrowers. This guarantee
(the "Grace New York Guarantee") shall remain in full force and effect until
the Obligations of each of the Borrowers are indefeasibly paid in full,
notwithstanding that from time to time prior thereto any Borrower may be free
from any Obligations. Grace New York agrees that whenever, at any time, or
from time to time, it shall make any payment to the Agent or any Bank on
account of its liability under this Grace New York Guarantee, it will notify
the Agent and such Bank in writing that such payment is made under this Grace
New York Guarantee for such purpose. No payment or payments made by any
Borrower or any other Person or received or collected by the Agent or any Bank
from any Borrower or any other Person by virtue of any action or proceeding or
any offset or appropriation or application, at any time or from time to time,
in reduction of or in payment of the Obligations of such Borrower shall be
deemed to modify, reduce, release or otherwise affect the liability of Grace
New York under this Grace New York Guarantee, which shall remain obligated
under this Grace New York Guarantee, notwithstanding any such payment or
payments until the Obligations are paid in full.
12.2 Company Guarantee. The Company hereby unconditionally
and irrevocably guarantees to the Agent and the Banks, the prompt and complete
payment and performance by each of the other Borrowers when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations owing to the
Agent
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and the Banks by such Borrowers. This guarantee (the "Company Guarantee")
shall remain in full force and effect until the Obligations of each such
Borrower are indefeasibly paid in full, notwithstanding that from time to time
prior thereto any such Borrower may be free from any Obligations. The Company
agrees that whenever, at any time, or from time to time, it shall make any
payment to the Agent or any Bank on account of its liability under this Company
Guarantee, it will notify the Agent and such Bank in writing that such payment
is made under this Company Guarantee for such purpose. No payment or payments
made by any such Borrower or any other Person or received or collected by the
Agent or any Bank from any such Borrower or any other Person by virtue of any
action or proceeding or any offset or appropriation or application, at any time
or from time to time, in reduction of or in payment of the Obligations of such
Borrowers shall be deemed to modify, reduce, release or otherwise affect the
liability of the Company under this Company Guarantee, which shall remain
obligated under this Company Guarantee, notwithstanding any such payment or
payments until the Obligations of such Borrowers are paid in full.
12.3 No Subrogation, Contribution, Reimbursement or
Indemnity. Notwithstanding anything to the contrary in the Grace New York
Guarantee and the Company Guarantee (together, the "Guarantees", each a
"Guarantee"), each of Grace New York and the Company (together, the
"Guaranteeing Parties," each a "Guaranteeing Party") hereby irrevocably waives
all rights which may have arisen in connection with its Guarantee to be
subrogated to any of the rights (whether contractual, under the Bankruptcy
Code, including Section 509 thereof, under common law or otherwise) of the
Agent or any Bank against the Company or any other Borrowers (together, the
"Guaranteed Parties", each a "Guaranteed Party") for the payment of the
Obligations. Each Guaranteeing Party hereby further irrevocably waives all
contractual, common law, statutory or other rights of reimbursement,
contribution, exoneration or indemnity (or any similar right) from or against
any Guaranteed Party or Parties or any other Person which may have arisen in
connection with its Guarantee. So long as the Obligations remain outstanding,
if any amount shall be paid by or on behalf of any Guaranteed Party to the
Guaranteeing Party on account of any of the rights waived in this subsection,
such amount shall be held by such Guaranteeing Party in trust, segregated from
other funds of such Guaranteeing Party, and shall, forthwith upon receipt by
such Guaranteeing Party, be turned over to the Agent in the exact form received
by such Guaranteeing Party (duly endorsed by such Guaranteeing Party to the
Agent, if required), to be applied against the Obligations of such Guaranteed
Party or Parties, whether matured or unmatured, in such order as the Agent may
determine. The provisions of this subsection as they apply to each of the
Guaranteeing Parties shall survive the payment in full of the Obligations of
its Guaranteed Party or Parties.
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12.4 Amendments, etc., with respect to the Obligations. Each
Guaranteeing Party shall remain obligated under its Guarantee notwithstanding
that, without any reservation of rights against such Guaranteeing Party, and
without notice to or further assent by such Guaranteeing Party, any demand for
payment of any of the Obligations made by the Agent or any Bank may be
rescinded by the Agent or such Bank, and any of the Obligations continued, and
the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Agent or any Bank, and this Agreement, the Notes and the other
Loan Documents may be amended, modified, supplemented or terminated, in whole
or in part, as the Agent or the Banks (or the Majority Banks, as the case may
be) may deem advisable from time to time in accordance with the provisions of
subsection 13.1(a), and any collateral security, guarantee or right of set-off
at any time held by the Agent or any Bank for the payment of the Obligations
may be sold, exchanged, waived, surrendered or released. Neither the Agent nor
any Bank shall have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Obligations or for the
obligations of either Guaranteeing Party under its Guarantee or any property
subject thereto.
12.5 Guarantee Absolute and Unconditional. Each Guaranteeing
Party waives any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by the Agent or
any Bank upon its Guarantee or acceptance of its Guarantee; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred in reliance upon the Guarantees; and all dealings between the
Borrowers and Grace New York, on the one hand, and the Agent and the Banks, on
the other, shall likewise be conclusively presumed to have been had or
consummated in reliance upon the Guarantees. Each Guaranteeing Party waives
diligence, presentment, protest, notice of intent to accelerate, notice of
acceleration, demand for payment and notice of default or nonpayment to or upon
any Guaranteed Party or such Guaranteeing Party with respect to the
Obligations. The Guarantees shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of this Agreement, any Note, any other Loan Document, any of the
Obligations or any collateral security therefor or guarantee or right of
set-off with respect thereto at any time or from time to time held by the Agent
or any Bank, (b) any defense, offset or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
any of the Guaranteed Parties against the Agent or any Bank or (c) any other
circumstance whatsoever (with or without notice to or knowledge of any of the
Guaranteed Parties or such Guaranteeing Party) which constitutes, or might be
construed to constitute, an equitable or legal discharge of any
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of the Guaranteed Parties for the Obligations of such Guaranteed Party, or of
such Guaranteeing Party under its Guarantee, in bankruptcy or in any other
instance. When the Agent is pursuing its rights and remedies hereunder against
either Guaranteeing Party, the Agent or any Bank may, but shall be under no
obligation to, pursue such rights and remedies as it may have against its
Guaranteed Party or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by the Agent or any Bank to pursue such other rights or remedies or
to collect any payments from such Guaranteed Party or such other Person or to
realize upon any such collateral security or guarantee or to exercise such
right of offset or any release of such Guaranteed Party or such other Person or
of any such collateral security, guarantee or right of offset, shall not
relieve such Guaranteeing Party of any liability under its Guarantee, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Agent and the Banks against such
Guaranteeing Party.
12.6 Reinstatement. Each Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations of any Guaranteed Party thereunder is
rescinded or must otherwise be restored or returned by the Agent or any Bank
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
such Guaranteed Party or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, such
Guaranteed Party or any substantial part of any of its property, or otherwise,
all as though such payments had not been made.
12.7 Payments. Each Guaranteeing Party hereby agrees that
the Obligations will be paid to the Agent for the benefit of the Agent and the
Banks, as the case may be, without set-off or counterclaim in Dollars or
Alternative Currency, as appropriate, in immediately available funds at the
office of the Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 13. MISCELLANEOUS
13.1 Amendments and Waivers; Replacement of Banks. (a)
Neither this Agreement, any Note, any other Loan Document, nor any terms hereof
or thereof may be amended, supplemented or modified except in accordance with
the provisions of this subsection. With the written consent of the Majority
Banks, the Agent, Grace New York and the Company may, from time to time, enter
into written amendments, supplements or modifications hereto and to the Notes,
if any, and the other Loan Documents for the purpose of adding any provisions
to this Agreement or the Notes, if any, or the other Loan Documents or changing
in any manner the rights of the Xxxxx, Xxxxx New York or of the Borrowers
hereunder or thereunder or waiving, on such terms and
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conditions as the Agent may specify in such instrument, any of the requirements
of this Agreement or the Notes, if any, or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (a) reduce
the amount or extend the maturity of any Loan or Note or any installment
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any fee payable to any Bank hereunder, or change the amount of any
Bank's Commitment, in each case without the consent of the Bank affected
thereby, or (b) amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Majority Banks, or consent
to the assignment or transfer by Grace New York or any Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, or
amend, modify or waive any provision of Section 12, in each case without the
written consent of all the Banks, or (c) amend, modify or waive any provision
of Section 11 without the written consent of the then Agent. Any such waiver
and any such amendment, supplement or modification shall apply equally to each
of the Banks and shall be binding upon Grace New York, the Borrowers, the
Banks, the Agent, all future holders of the Notes, if any, and all future
obligees under the Loans. In the case of any waiver, Grace New York, the
Borrowers, the Banks and the Agent shall be restored to their former position
and rights hereunder and under the outstanding Loans or Notes, if any, and any
other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
(b) Notwithstanding anything to the contrary contained in
subsection 13.1(a), so long as no Default or Event of Default has occurred and
is continuing the Borrowers and Grace New York shall be permitted in their
discretion (but, if any Revolving Credit Loans are then outstanding, with the
consent of the Majority Banks (which consent shall not be unreasonably
withheld)) to amend this Agreement to replace one or more Banks without the
consent of any Bank to be so replaced pursuant to this subsection 13.1(b) (a
"Replaced Bank") and to provide for (w) the termination of the Commitments of
such Replaced Bank, (x) the addition to this Agreement of one or more other
banking institutions, or an increase in the Commitments of one or more of the
other Banks (with the consent of such other Banks), so that the total
Commitments after giving effect to such amendment shall be in the same amount
as the total Commitments immediately before giving effect to such amendment,
(y) if any Loans are outstanding at the time of such amendment, the making of
such additional Loans by such new financial institutions or other Bank or
Banks, as the case may be, as may be necessary to repay in full the outstanding
Loans of such Replaced Bank together with interest thereon and all accrued fees
and indemnities with respect thereto immediately before giving effect to such
amendment and (z) such
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other modifications to this Agreement as may be necessary to effect the
replacement of such Replaced Bank.
(c) Notwithstanding anything to the contrary contained in
paragraph (a) or (b) of this subsection 13.1, if as a result of a change in any
Requirement of Law after the date hereof any Borrower or Grace New York has
become obligated to, or reasonably believes that it will become obligated to
pay to any Bank any increased amount pursuant to subsection 5.11, 5.12 or 5.13,
and such Bank shall not have waived payment of such increased amounts, then the
Borrowers and Grace New York may, if no Default or Event of Default has
occurred and is continuing and payment of any such increased amounts as have
become due has been made or appropriately provided for, upon five Business
Days' notice to the Agent and such Bank, amend this Agreement, without the
consent of any Bank or the Agent, to replace any one or more of the Banks to
which such increased amounts have become payable or would become payable and to
provide for the matters referred to in clauses (w), (x), (y) and (z) of
subsection 13.1(b), and such replaced Bank or Banks shall be deemed to be
Replaced Banks for purposes of such clauses.
13.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made on receipt, addressed as follows in the case of
the Company, Grace New York and the Agent, as set forth in paragraph 5 of the
Notice of Additional Borrower relating to any Borrower other than the Company,
in the case of such other Borrower, and as set forth in Schedule I in the case
of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes,
if any, or any future obligees under the Loans:
The Company: X. X. Xxxxx & Co.-Xxxx
Xxx Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Attention: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Grace New
York: X. X. Xxxxx & Co.
Xxx Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000-0000
Attention: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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The Agent: Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
13.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Agent or any Bank, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
13.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes, if any.
13.5 Payment of Expenses and Taxes. The Company agrees (a)
to pay or reimburse the Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and any Notes and
the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation,
the fees and disbursements of counsel to the Agent, (b) to pay or reimburse
each Bank and the Agent for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, any
Notes, the other Loan Documents and any such other documents, including,
without limitation, fees and disbursements of counsel to the Agent and to the
several Banks, and (c) to pay, indemnify, and hold each Bank and the Agent
harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other transactional taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, any Notes, the other Loan Documents and any such
other documents, and (d) to pay, indemnify, and hold each Bank and the Agent
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery and
performance by the Loan Parties, and
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administration and enforcement by the Agent and the Banks of this Agreement,
any Notes and the other Loan Documents and any such other documents (all the
foregoing, collectively, the "indemnified liabilities"), provided, that the
Company shall have no obligation hereunder to the Agent or any Bank with
respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the Agent or any such Bank, (ii) legal proceedings
commenced against the Agent or any such Bank by any security holder or creditor
thereof arising out of and based upon rights afforded any such security holder
or creditor solely in its capacity as such, or (iii) legal proceedings
commenced against the Agent or any such Bank by any other Bank or by any
Transferee (as defined in subsection 13.6). The agreements in this subsection
shall survive repayment of the Loans or Notes, if any, and all other amounts
payable hereunder.
13.6 Successors and Assigns; Participations; Purchasing
Banks.
(a) This Agreement shall be binding upon and inure to the
benefit of Grace New York, the Borrowers, the Banks, the Agent, all future
holders of the Notes, if any, all future obligees under the Loans and their
respective successors and assigns, except that neither Grace New York nor any
Borrower may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Bank, any Note held by such Bank, any Commitments of such
Bank or any other interest of such Bank hereunder and under the other Loan
Documents. In the event of any such sale by a Bank of participating interests
to a Participant, such Bank's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain the holder of
any such Note, if any, and the obligee under any such Loan for all purposes
under this Agreement and the other Loan Documents, and Grace New York, the
Borrowers and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement
and the other Loan Documents. Each of Grace New York and each of the Borrowers
agrees that if amounts outstanding under this Agreement and the Loans or the
Notes, if any, are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement and any Loan or
Note to the same extent as if the amount of its participating interest were
owing directly to it as a Bank under this Agreement or any Loan or Note,
provided that such Participant shall only be entitled to such right of set-off
if it shall have agreed in the agreement
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pursuant to which it shall have acquired its participating interest to share
with the Banks the proceeds thereof as provided in subsection 13.7. Each of
Grace New York and each of the Borrowers also agrees that each Participant
shall be entitled to the benefits of subsections 5.11, 5.12, 5.13 and 13.5 with
respect to its participation in the Commitments and the Loans outstanding from
time to time; provided, that no Participant shall be entitled to receive any
greater amount pursuant to such subsections than the transferor Bank would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Bank to such Participant had no such transfer
occurred.
(c) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to any
Bank or any affiliate thereof and, with the consent of the Company (which
consent shall not be unreasonably withheld) and upon notice to the Agent, to
one or more additional banks or financial institutions ("Purchasing Banks") all
or any part of its rights and obligations under this Agreement and the Loans or
the Notes, if any, pursuant to a Commitment Transfer Supplement, substantially
in the form of Exhibit H, executed by such Purchasing Bank, such transferor
Bank (and, in the case of a Purchasing Bank that is not then a Bank or an
affiliate thereof, by the Company and the Agent) and delivered to the Agent for
its acceptance and recording in the Register. Upon such execution, delivery,
acceptance and recording, from and after the Transfer Effective Date determined
pursuant to such Commitment Transfer Supplement, (x) the Purchasing Bank
thereunder shall be a party hereto and, to the extent provided in such
Commitment Transfer Supplement, have the rights and obligations of a Bank
hereunder with a Commitment as set forth therein, and (y) the transferor Bank
thereunder shall, to the extent provided in such Commitment Transfer
Supplement, be released from its obligations under this Agreement (and, in the
case of a Commitment Transfer Supplement covering all or the remaining portion
of a transferor Bank's rights and obligations under this Agreement, such
transferor Bank shall cease to be a party hereto). Such Commitment Transfer
Supplement shall be deemed to amend this Agreement to the extent, and only to
the extent, necessary to reflect the addition of such Purchasing Bank and the
resulting adjustment of Commitment Percentages arising from the purchase by
such Purchasing Bank of all or a portion of the rights and obligations of such
transferor Bank under this Agreement and the Loan or the Notes, if any. On or
prior to the Transfer Effective Date determined pursuant to such Commitment
Transfer Supplement, the relevant Borrower, at its own expense, if the
Purchasing Bank so requests, shall execute and deliver to the Agent in exchange
for any surrendered Revolving Credit Note and Bid Loan Note a new Revolving
Credit Note and Bid Loan Note to the order of such Purchasing Bank in an amount
equal to the Commitment assumed by it pursuant to such Commitment Transfer
Supplement and, if the transferor Bank has retained a Commitment hereunder, new
Notes to the order of the transferor Bank in an
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amount equal to the Commitment retained by it hereunder. Such new Notes shall
be dated the Closing Date and shall otherwise be in the form of the Notes
replaced thereby. Any Notes surrendered by the transferor Bank shall be
returned by the Agent to the Company marked "cancelled".
(d) The Agent shall maintain at its address referred to in
subsection 13.2 a copy of each Commitment Transfer Supplement delivered to it
and a register (the "Register") for the recordation of the names and addresses
of the Banks and the Commitment of, and principal amount of the Loans owing to,
each Bank from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and Grace New York, the Borrowers, the Agent
and the Banks may treat each Person whose name is recorded in the Register as
the owner of the Loan recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by Grace New York, the Borrowers or
any Bank at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Bank and Purchasing Bank (and, in the case of a
Purchasing Bank that is not then a Bank or an affiliate thereof, by the Company
and the Agent) together with payment to the Agent of a registration and
processing fee of $500, the Agent shall (i) promptly accept such Commitment
Transfer Supplement (ii) on the Transfer Effective Date determined pursuant
thereto record the information contained therein in the Register and give
notice of such acceptance and recordation to the Banks and the Company.
(f) Each of Grace New York and the Borrowers authorizes each
Bank to disclose to any Participant or Purchasing Bank (each, a "Transferee")
and any prospective Transferee any and all financial information in such Bank's
possession concerning such Borrower and its affiliates which has been delivered
to such Bank by or on behalf of Grace New York, the Company or such Borrower
pursuant to this Agreement or which has been delivered to such Bank by or on
behalf of Grace New York, the Company or such Borrower in connection with such
Bank's credit evaluation of such Borrower and its affiliates prior to becoming
a party to this Agreement.
(g) If, pursuant to this subsection, any interest in this
Agreement or any Note is transferred to any Transferee which is organized under
the laws of any jurisdiction other than the United States or any state thereof,
the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for
the benefit of the transferor Bank, the Agent, Grace New York and the
Borrowers) that under applicable law and treaties no taxes will be required to
be withheld by the Agent, Grace New York, the Borrowers or the transferor Bank
with respect to any payments to be made to such Transferee in respect of the
Loans, (ii) to
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furnish to the transferor Bank (and, in the case of any Purchasing Bank
registered in the Register, the Agent, Grace New York and the Company) either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 (wherein such Transferee claims entitlement to complete exemption from
U.S. federal withholding tax on all interest payments hereunder) and (iii) to
agree (for the benefit of the transferor Bank, the Agent, Grace New York and
the Company) to provide the transferor Bank (and, in the case of any Purchasing
Bank registered in the Register, the Agent, Grace New York and the Company) a
new Form 4224 or Form 1001 upon the expiration or obsolescence of any
previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all applicable U.S.
laws and regulations with regard to such withholding tax exemption.
(h) Nothing herein shall prohibit any Bank from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
13.7 Adjustments; Set-off.
(a) If any Bank (a "benefitted Bank") shall at any time
receive any payment of all or part of its Revolving Credit Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 10(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Bank, if any, in respect of
such other Bank's Revolving Credit Loans, or interest thereon, such benefitted
Bank shall purchase for cash from the other Banks such portion of each such
other Bank's Loan, or shall provide such other Banks with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. Each
Borrower agrees that each Bank so purchasing a portion of another Bank's Loan
may exercise all rights of payment (including, without limitation, rights of
set-off) with respect to such portion as fully as if such Bank were the direct
holder of such portion.
(b) In addition to any rights and remedies of the Banks
provided by law, each Bank shall have the right, without prior notice to Grace
New York and the Borrowers, any such notice being expressly waived by Grace New
York and the Borrowers, to the extent permitted by applicable law, upon any
amount not being paid when due and payable by any Borrower hereunder or under
the Notes (whether at the stated maturity, by acceleration or
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otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Bank or any branch or agency
thereof to or for the credit or the account of Grace New York or such Borrower.
Each Bank agrees promptly to notify Grace New York, the Borrowers and the Agent
after any such set-off and application made by such Bank, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
13.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with Grace New York, the Company and the Agent.
13.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.10 Integration. This Agreement represents the agreement
of Grace New York, each Borrower, the Agent and the Banks with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Agent or any Bank relative to subject matter hereof not
expressly set forth or referred to herein, in the other Loan Documents or in
any documentation entered into pursuant to subsection 3.1(b).
13.11 GOVERNING LAW. THIS AGREEMENT (INCLUDING SECTION 12)
AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.12 Submission to Jurisdiction; Waivers. (a) Each of
Grace New York, each Borrower, the Agent and the Banks hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York sitting in New
York County, the courts of the United States of America for the
Southern
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District of New York, and the appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Grace New York or such Borrower at its address set forth
in subsection 13.2 or, with respect to Borrowers other than the
Company, the Notice of Additional Borrower relating to such Borrower
or at such other address of which the Agent shall have been notified
pursuant thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
(b) Each Borrower other than the Company hereby appoints and
empowers each of Grace New York and the Company, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Treasurer, as its authorized agent
(the "Process Agent") to receive on behalf of such Borrower service of any and
all process and documents in any such legal action or proceeding brought in a
New York state or federal court sitting in New York City. It is understood
that a copy of such process served on the Process Agent will be promptly hand
delivered or mailed (by registered or certified airmail if available), postage
prepaid, to such Borrower at its address set forth in paragraph 5 of such
Borrower's Notice of Additional Borrower, but the failure of such Borrower to
receive such copy shall not affect in any way the service of such process on
the Process Agent. If the Process Agent shall refuse or be prevented from
acting as agent, notice thereof shall immediately be given by such Borrowers to
the Agent by registered or certified airmail (if available), postage prepaid,
and such Borrowers agree promptly to designate another agent in New York City,
satisfactory to the Agent, to serve in place of the Process Agent and deliver
to the Agent written evidence of such substitute agent's acceptance of such
designation.
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13.13 Acknowledgments. Each of Grace New York, each
Borrower, the Agent and the Banks hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes and the other
Loan Documents;
(b) neither the Agent nor any Bank has any fiduciary
relationship with or duty to Grace New York or such Borrower, as the
case may be, arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between Agent
and Banks, on one hand, and Grace New York and the Borrowers, on the
other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(c) as to any matter relating to any Loan Documents, no joint
venture exists among the Banks or among Grace New York, the Borrowers
and the Banks.
13.14 WAIVERS OF JURY TRIAL. GRACE NEW YORK, THE BORROWERS,
THE AGENT AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
13.15 Additional Borrowers. (a) Any Subsidiary of the
Company shall have the right to become a "Borrower" hereunder, and to borrow
hereunder subject to the terms and conditions hereof applicable to a Borrower
and to the following additional conditions:
(i) the Company shall deliver a notice in substantially
the form of Exhibit I hereto (a "Notice of Additional Borrower")
signed by such Subsidiary and countersigned by Grace New York and the
Company to the Agent and the Banks stating that such Subsidiary
desires to become a "Borrower" under this Agreement and agrees to be
bound by the terms hereof. From the time of receipt of such Notice of
Additional Borrower by the Agent and the Banks and subject to the
satisfaction of each condition precedent contained in such Notice of
Additional Borrower, such Subsidiary shall be a "Borrower" hereunder
with all of the rights and obligations of a Borrower hereunder;
provided, however, that the Company may revoke a Notice of Additional
Borrower with respect to any Subsidiary (other than the Company) upon
five Business Days' written notice to the Agent, so long as such
Borrower has no Obligations outstanding. No Notice of Additional
Borrower relating to a Subsidiary may be revoked as to amounts owed by
such Subsidiary to the Banks under this Agreement or any Notes or when
an irrevocable notice pursuant to subsection 2.3, or a notice of
acceptance pursuant to subsection 3.1 or 4.2, has
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been given by such Subsidiary as a Borrower and is effective;
(ii) if such Subsidiary is a Foreign Subsidiary, if
reasonably requested by the Majority Banks, such Notice of Additional
Borrower shall be accompanied by an opinion of counsel for such
Subsidiary as specified in paragraph 4(a)(ii) of such Notice of
Additional Borrower;
(iii) and the other conditions set forth in such Notice of
Additional Borrower shall have been satisfied (including the
representations and warranties contained therein being true and
correct as of the date thereof).
(b) Promptly, upon receipt of any Notice of Additional
Borrower by the Agent, the Agent shall notify each Bank thereof, and shall
deliver to each Bank copies of each document delivered to the Agent pursuant to
such Notice of Additional Borrower.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York by their
proper and duly authorized officers as of the day and year first above written.
X. X. XXXXX & CO.-XXXX.
By:
--------------------------
Title: Vice President
X. X. XXXXX & CO.
By:
---------------------------
Title: Vice President
CHEMICAL BANK, as Agent and as
a Bank
By:
---------------------------
Title: Vice President
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SCHEDULE I
BANK COMMITMENT
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Chemical Bank $250,000,000
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Lending Offices; Address For Notices
CHEMICAL BANK
-------------
Domestic Lending Office: Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Eurodollar Lending Office: Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices: Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Address for Bid Loan Notices: Chemical Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
