EXHIBIT 2.4
[CONFORMED COPY]
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NORTHROP GRUMMAN CORPORATION
______________________
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 15, 1994
Amended and Restated as of March 1, 1996
______________________
$3,800,000,000
______________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent
CHEMICAL SECURITIES INC.,
as Syndication Agent
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Administrative Agent
________________________________________________________________________________
TABLE OF CONTENTS
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Section 1. Definitions and Accounting Matters....................................... 1
1.01 Certain Defined Terms................................................... 1
1.02 Accounting Terms and Determinations..................................... 28
1.03 Classes and Types of Loans.............................................. 29
Section 2. Commitments.............................................................. 30
2.01 Syndicated Loans........................................................ 30
2.02 Borrowings of Syndicated Loans.......................................... 30
2.03 Competitive Bid Loans................................................... 32
2.04 Changes of Commitments.................................................. 37
2.05 Fees.................................................................... 40
2.06 Lending Offices......................................................... 40
2.07 Several Obligations; Remedies Independent............................... 40
2.08 Notes................................................................... 41
2.09 Optional Prepayments and Conversions or
Continuations of Loans............................................... 42
2.10 Mandatory Prepayments................................................... 43
2.11 Swingline Loans......................................................... 44
Section 3. Payments of Principal and Interest....................................... 45
3.01 Repayment of Loans...................................................... 45
3.02 Interest................................................................ 46
Section 4. Payments; Pro Rata Treatment; Computations;
Etc.................................................................. 47
4.01 Payments................................................................ 47
4.02 Pro Rata Treatment...................................................... 48
4.03 Computations............................................................ 49
4.04 Non-Receipt of Funds by the Administrative
Agent................................................................ 49
4.05 Sharing of Payments, Etc................................................ 50
4.06 Minimum Amounts......................................................... 51
4.07 Certain Notices......................................................... 51
Section 5. Yield Protection and Illegality.......................................... 53
5.01 Additional Costs........................................................ 53
5.02 Limitation on Types of Loans............................................ 55
5.03 Illegality.............................................................. 56
5.04 Base Rate Loans Pursuant to Sections 5.01
and 5.03............................................................. 56
5.05 Compensation............................................................ 57
Section 6. Conditions Precedent..................................................... 58
6.01 Conditions to Effectiveness............................................. 58
6.02 Initial and Subsequent Loans............................................ 61
Section 7. Representations and Warranties........................................... 62
7.01 Corporate Existence..................................................... 62
Credit Agreement
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7.02 Certain Financial Information................................... 62
7.03 Litigation...................................................... 64
7.04 No Breach....................................................... 64
7.05 Corporate Action................................................ 64
7.06 Approvals....................................................... 65
7.07 Use of Proceeds, Etc............................................ 65
7.08 ERISA........................................................... 65
7.09 Taxes........................................................... 65
7.10 Funded Debt..................................................... 66
7.11 Properties...................................................... 66
7.12 Environmental Matters........................................... 67
7.13 True and Complete Disclosure.................................... 67
7.14 Acquisition..................................................... 68
7.15 Material Subsidiaries........................................... 68
7.16 Intercompany Debt............................................... 68
Section 8. Covenants of the Company.......................................... 68
8.01 Financial Statements............................................ 68
8.02 Existence, Payment of Taxes, ERISA, Etc......................... 70
8.03 Notice of Litigation............................................ 71
8.04 Insurance....................................................... 72
8.05 Access to Books and Properties.................................. 72
8.06 Restricted Payments............................................. 72
8.07 Dispositions.................................................... 72
8.08 Guarantees...................................................... 73
8.09 Fundamental Changes and Acquisitions............................ 73
8.10 Limitation on Liens............................................. 74
8.11 Investments..................................................... 75
8.12 Indebtedness.................................................... 76
8.13 Leverage Ratio.................................................. 77
8.14 Funded Debt to Cash Flow Ratio.................................. 77
8.15 Fixed Charge Coverage Ratio..................................... 78
8.16 Use of Proceeds................................................. 78
8.17 Margin Stock.................................................... 78
8.18 Interest Rate Protection Agreements............................. 78
8.19 Issuance of Subordinated Debt or Equity......................... 79
8.20 Modifications of Certain Documents.............................. 79
8.21 Subsidiary Equity Issuance...................................... 79
8.22 Ratings by ▇▇▇▇▇'▇ and S&P...................................... 79
Section 9. Events of Default................................................. 79
Section 10. Agency Provisions................................................ 84
10.01 Appointment, Powers and Immunities.............................. 84
10.02 Reliance........................................................ 84
10.03 Defaults........................................................ 85
10.04 Rights as a Bank................................................ 85
10.05 Indemnification................................................. 85
10.06 Non-Reliance.................................................... 86
10.07 Failure to Act.................................................. 86
10.08 Resignation or Removal of Administrative
Agent......................................................... 86
Credit Agreement
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10.09 Agents, Etc..................................................... 87
Section 11. Miscellaneous.................................................... 87
11.01 Waiver.......................................................... 87
11.02 Notices......................................................... 87
11.03 Expenses, Etc................................................... 88
11.04 Amendments, Etc................................................. 89
11.05 Successors and Assigns.......................................... 89
11.06 Assignments and Participations.................................. 90
11.07 Survival........................................................ 92
11.08 Captions........................................................ 92
11.09 Counterparts.................................................... 92
11.10 Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial.......................................... 92
11.11 Confidentiality................................................. 92
SCHEDULE I - Commitments
SCHEDULE II - Material Subsidiaries
SCHEDULE III - Litigation
SCHEDULE IV - Existing Indebtedness
EXHIBIT A-1 - Form of Series I Term Note
EXHIBIT A-2 - Form of Series II Term Note
EXHIBIT A-3 - Form of Revolving Note
EXHIBIT A-4 - Form of Competitive Bid Note
EXHIBIT A-5 - Form of Swingline Note
EXHIBIT B-1 - Form of Opinion of Sheppard, Mullin, ▇▇▇▇▇▇▇ &
Hampton LLP, Special California Counsel to the
Company
EXHIBIT B-2 - Form of Opinion of General Counsel of the Company
EXHIBIT C - Form of Opinion of Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, Special New York Counsel to the Banks and
the Swingline Bank
EXHIBIT D - Form of Confidentiality Agreement
Credit Agreement
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 15,
1994, as amended and restated as of March 1, 1996, among: NORTHROP GRUMMAN
CORPORATION, a corporation duly organized and validly existing under the laws of
the State of Delaware (together with its successors and permitted assigns, the
"Company"); each of the banks that is a signatory hereto (together with its
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successors and permitted assigns, individually, a "Bank" and, collectively, the
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"Banks"); and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as a Swingline
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Bank under Section 2.11 hereof (in such capacity, together with its successors
and permitted assigns in such capacity, the "Swingline Bank") and as
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administrative agent for the Banks and the Swingline Bank (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
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The Company, certain of the Banks and the Administrative Agent are
party to the Credit Agreement dated as of April 15, 1994, as amended and
restated as of April 18, 1994, as further amended by Amendment No. 1 dated as of
May 11, 1994 and Amendment No. 2 dated as of December 9, 1994 (as in effect
immediately prior to the Amendment Effective Date referred to below, the
"Existing Credit Agreement").
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The Company has requested, and the Banks and the Administrative Agent
are willing, to amend and restate the Existing Credit Agreement to, among other
things, increase the aggregate amount of the Commitments, add certain Banks,
amend certain of the covenants and add an additional term loan facility, all on
the terms and conditions hereof.
Accordingly, the parties hereto agree to amend and restate the
Existing Credit Agreement so that, as amended and restated, it reads in its
entirety as herein provided.
Section 1. Definitions and Accounting Matters.
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1.01 Certain Defined Terms. As used herein, the following terms
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shall have the following meanings (all terms defined in this Section 1 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
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"Acquired Business" shall mean the Acquired Assets and the Assumed
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Liabilities, as such terms are defined in the Asset Purchase Agreement.
"Acquisition" shall mean the acquisition directly or indirectly by the
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Company of the Acquired Business pursuant to the Asset Purchase Agreement.
Credit Agreement
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"Amendment Effective Date" shall mean the date on which the conditions
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precedent set forth in Section 6.01 hereof are satisfied.
"Applicable Facility Fee Rate" with respect to the Revolving Credit
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Commitments shall mean: (a) during the period from the Restatement Date to
but excluding the first Business Day after the date on which the
Administrative Agent shall have received (i) the financial statements
described in Section 8.01(b) hereof as at and for the Quarterly Period
ending on March 31, 1996 and (ii) the accompanying certificate required to
be delivered under Section 8.01(h) hereof, 0.375% and (b) thereafter,
during the period from and including the first Business Day after the date
on which the Administrative Agent shall have received (i) the financial
statements described in Section 8.01 hereof as at and for the fiscal period
ending on the preceding Fiscal Date and (ii) the accompanying certificate
required to be delivered under Section 8.01(h) hereof to but excluding the
first Business Day after the date on which the Administrative Agent shall
have received (x) the financial statements described in Section 8.01 hereof
as at and for the fiscal period ending on the next Fiscal Date and (y) the
accompanying certificate required to be delivered under Section 8.01(h)
hereof, the respective rates set forth below opposite the range of the
Leverage Ratio set forth below which encompasses the Leverage Ratio set
forth in the certificate delivered under Section 8.01(h) hereof for such
preceding Fiscal Date (provided, further, that if the Company shall fail
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timely to deliver such financial statements or certificate, the "Applicable
Facility Fee Rate" with respect to the Revolving Credit Commitments during
the period from the date by which such financial statements and certificate
were required to be delivered to but excluding the first Business Day after
the date on which the Administrative Agent receives such financial
statements and certificate, shall be determined as if the relevant Leverage
Ratio were greater than 75%):
Credit Agreement
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Applicable
Range of Leverage Ratio Facility Fee Rate
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Less than 50% .1500%
Greater than or equal
to 50% but less than 55% .1875%
Greater than or equal
to 55% but less than 60% .2000%
Greater than or equal
to 60% but less than 65% .2250%
Greater than or equal
to 65% but less than 70% .2750%
Greater than or equal
to 70% but less than 75% .3250%
Greater than or equal
to 75% .3750%
Notwithstanding the foregoing, if at any time either Rating ▇▇▇▇▇ ▇ or
Rating Level 2 is in effect, the Applicable Facility Fee Rate with respect
to the Revolving Credit Commitments shall be the respective rates set forth
below opposite the applicable Rating Level:
Applicable Rating Level Facility Fee Rate
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Rating ▇▇▇▇▇ ▇ .1500%
Rating ▇▇▇▇▇ ▇ .▇▇▇▇%
"▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇" ▇▇▇▇▇ ▇▇▇▇, (▇) for each Bank and for each
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Type of Loan, the "Lending Office" of such Bank (or of an affiliate of such
Bank) designated for such Type of Loan on the signature pages hereof or
such other office of such Bank (or of an affiliate of such Bank) as such
Bank may from time to time specify to the Administrative Agent and the
Company as the office by which its Loans of such Type are to be made and
maintained and (b) for the Swingline Bank, the Lending Office of the
Swingline Bank (or of an affiliate of the Swingline Bank) designated for
Swingline Loans on the signature pages hereof or such other office of the
Swingline Bank (or of an affiliate of the Swingline Bank) as the Swingline
Bank may from time to time specify to the Administrative Agent and the
Company as the office by which Swingline Loans are to be made and
maintained.
Credit Agreement
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"Applicable Margin" for each Type of Syndicated Loan shall be as
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follows: (a) during the period from the Restatement Date to but excluding
the first Business Day after the date on which the Administrative Agent
shall have received (i) the financial statements described in Section
8.01(b) hereof as at and for the Quarterly Period ending on March 31, 1996
and (ii) the accompanying certificate required to be delivered under
Section 8.01(h) hereof, the Applicable Margin for Revolving Loans that are
Base Rate Loans shall be 0.125% and for Revolving Loans that are Eurodollar
Loans shall be 1.375% and the Applicable Margin for Term Loans that are
Base Rate Loans shall be 0.50% and for Term Loans that are Eurodollar Loans
shall be 1.750% and (b) thereafter, during the period from and including
the first Business Day after the date on which the Administrative Agent
shall have received (i) the financial statements described in Section 8.01
hereof as at and for the fiscal period ending on the preceding Fiscal Date
and (ii) the accompanying certificate required to be delivered under
Section 8.01(h) hereof to but excluding the first Business Day after the
date on which the Administrative Agent shall have received (x) the
financial statements described in Section 8.01 hereof as at and for the
fiscal period ending on the next Fiscal Date and (y) the accompanying
certificate required to be delivered under Section 8.01(h) hereof, the
respective rates set forth opposite the range of the Leverage Ratio set
forth below which encompasses the Leverage Ratio set forth in such
certificate delivered under Section 8.01(h) hereof for such preceding
Fiscal Date (provided, further, that if the Company shall fail timely to
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deliver such financial statements or certificate, the "Applicable Margin"
for each Type of Syndicated Loan during the period from the date by which
such financial statements and certificate were required to be delivered to
but excluding the first Business Day after the date on which the
Administrative Agent receives such financial statements and certificate,
shall be determined as if the relevant Leverage Ratio were greater than
75%):
Term Loans Revolving Credit Loans
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Range of Base Rate Eurodollar Base Eurodollar
Leverage Ratio Loans Loans Loans Loans
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Less than 50% 0.0% .5000% 0.0% .3500%
Greater than or equal
to 50% but less than 55% 0.0% .6250% 0.0% .4375%
Greater than or equal
Credit Agreement
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to 55% but less than 60% 0.0% .7500% 0.0% .5500%
Greater than or equal
to 60% but less than 65% 0.0% 1.0000% 0.0% .7750%
Greater than or equal
to 65% but less than 70% 0.0% 1.2500% 0.0% .9750%
Greater than or equal
to 70% but less than 75% 0.25% 1.5000% 0.0% 1.1750%
Greater than or equal
to 75% 0.50% 1.7500% 0.125% 1.3750%
Notwithstanding the foregoing, if at any time either Rating ▇▇▇▇▇ ▇ or
Rating Level 2 is in effect, the Applicable Margin for each Type of
Syndicated Loan shall be the respective rates set forth below opposite the
applicable Rating Level:
Term Loans Revolving Credit Loans
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Applicable Base Rate Eurodollar Base Rate Eurodollar
Rating Level Loans Loans Loans Loans
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Rating ▇▇▇▇▇ ▇ 0.0% .5000% 0.0% .3500%
Rating ▇▇▇▇▇ ▇ 0.0% .6250% 0.0% .4250%
provided that, if (x) the ratings by S&P and ▇▇▇▇▇'▇ are split by two or
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more rating levels or (y) either S&P or ▇▇▇▇▇'▇ ceases to rate the Company
Senior Long-Term Debt and within 60 days after such cessation there is no
Substitute Rating therefor, a premium of .1250% will be added to the
Applicable Margins for Eurodollar Loans set forth above for the higher of
the two ratings (or the one rating in the case of a failure to rate).
"Asset Purchase Agreement" shall mean the Asset Purchase Agreement
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dated as of January 3, 1996, between the Seller and the Company and all
Exhibits and Schedules thereto, including, without limitation, the
Disclosure Schedule, as modified and supplemented and in effect from time
to time.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of 1978, as
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amended from time to time.
"Base Rate" shall mean, with respect to any Base Rate Loan, for any
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day, the higher of (a) the Federal Funds Rate for such day plus 1/2 of 1%
and (b) the Prime Rate for such day. Each change in any interest rate
provided for herein based upon the Base Rate resulting from a change in the
Base
Credit Agreement
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Rate shall take effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean (a) Syndicated Loans which bear interest
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at rates based upon the Base Rate and (b) Swingline Loans.
"Basle Accord" shall mean the proposals for risk-based capital
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framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended,
supplemented and otherwise modified and in effect from time to time, or any
replacement thereof.
"Business Day" shall mean any day (a) on which commercial banks are
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not authorized or required to close in New York City and (b) where such
term is used in the definition of "Quarterly Date" in this Section 1.01 and
if such day relates to the giving of notices or quotes in connection with a
LIBOR Auction or to a borrowing of, a payment or prepayment of principal of
or interest on, a Conversion of or into, or an Interest Period for, a
Eurodollar Loan or a LIBOR Bid Loan or a notice by the Company with respect
to any such borrowing, payment, prepayment, Conversion or Interest Period
for a Eurodollar Loan or a LIBOR Bid Loan, which is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Capital Expenditures" shall mean, for any period, expenditures
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(including, without limitation, the aggregate amount of Capital Lease
Obligations incurred during such period) made by the Company or any of the
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP.
"Capital Lease Obligations" shall mean, for any Person, all
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obligations of such Person to pay rent or other amounts under a lease of
(or other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP, and, for purposes of
this Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.
"Cash Flow" shall mean, for any period, the sum, for the Company and
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its Subsidiaries (determined on a
Credit Agreement
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consolidated basis without duplication in accordance with GAAP), of the
following: (a) operating margin (net sales minus cost of sales) for such
period plus (b) depreciation, amortization and any other non-cash expense
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items (to the extent deducted in determining operating margin) for such
period minus (c) any non-cash income items (to the extent included in
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determining operating margin) for such period.
"Chase" shall mean The Chase Manhattan Bank (National Association),
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and its successors.
"CIBC Receivables Sale Agreements" shall mean, collectively, (a) the
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Receivables Sale Agreement dated December 15, 1995 among the Company, as a
seller and as collection agent, ▇▇▇▇▇▇ Aircraft Company, as a seller, Asset
Securitization Cooperative Corporation, as purchaser, and Canadian Imperial
Bank of Commerce ("CIBC"), as servicing agent, and (b) the Receivables Sale
----
Agreement dated as of December 15, 1995 among the Company, as a seller and
as collection agent, ▇▇▇▇▇▇ Aircraft Company, as a seller, and CIBC, as
purchaser, in each case as in effect on the Amendment Effective Date, and
as modified and supplemented thereafter as permitted by Section 8.20
hereof.
"Class" shall have the meaning assigned to such term in Section 1.03
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hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
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"Commitments" shall mean the Revolving Credit Commitments and the Term
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Loan Commitments.
"Company Senior Long-Term Debt" shall mean Indebtedness of the Company
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that (a) is not contractually subordinated to any other Indebtedness of the
Company, (b) is considered under GAAP to be "long-term" debt, (c) is not
secured by a Lien on any Property of the Company or any of the Subsidiaries
or, if secured, is secured only by a pledge of the capital stock of one or
more Subsidiaries on a pari passu basis with the Indebtedness of the
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Company hereunder and (d) is not Guaranteed by a Person or, if Guaranteed,
is Guaranteed only by one or more Subsidiaries on a pari passu basis with
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the Indebtedness of the Company hereunder.
"Competitive Bid Borrowing" shall have the meaning assigned to such
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term in Section 2.03(b) hereof.
"Competitive Bid Loan Limit" shall have the meaning assigned to such
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term in Section 2.03(c) hereof.
Credit Agreement
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"Competitive Bid Loans" shall mean the loans provided for by Section
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2.03 hereof.
"Competitive Bid Margin" shall have the meaning assigned to such term
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in Section 2.03(c)(ii)(C) hereof.
"Competitive Bid Notes" shall mean the promissory notes provided for
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by Section 2.08(b) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be
modified and supplemented and in effect from time to time.
"Competitive Bid Quote" shall mean an offer by a Bank to make a
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Competitive Bid Loan in accordance with Section 2.03(c) hereof.
"Competitive Bid Quote Request" shall have the meaning assigned to
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such term in Section 2.03(b) hereof.
"Competitive Bid Rate" shall have the meaning assigned to such term in
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Section 2.03(c)(ii)(D) hereof.
"Consolidated Net Income Available for Restricted Payments" shall mean
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an amount equal to (i) the sum of $225,000,000 plus 80% (or minus 100% in
case of consolidated net loss) of Net Income for the period (taken as one
accounting period) commencing January 1, 1996 and terminating on the Fiscal
Date immediately preceding the date of any proposed Restricted Payment,
less (ii) the sum of (A) the aggregate amount of all dividends (except
stock dividends) and other distributions paid or declared by the Company on
any class of its stock on and after January 1, 1996 and (B) the excess (if
any) of the aggregate amount expended, directly or indirectly, on and after
January 1, 1996 for the redemption, purchase or other acquisition of any
shares of its stock, over the aggregate amount received on and after said
date as the Net Available Proceeds of the sale of any shares of its stock.
"Consolidated Shareholders' Equity" shall mean the amount of
---------------------------------
shareholders' equity of the Company and the Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) plus
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$196,000,000 (being the after-tax non-cash charges to income on or before
December 31, 1995 in connection with (i) the Company's early retirement
incentive program implemented on October 1, 1994 and (ii) the sale of plant
and equipment).
"Consolidating Financial Statements" shall mean, for any fiscal
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period, the unaudited consolidating statements of financial position and
income for the corporate office and
Credit Agreement
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principal operating centers of the Company and the Subsidiaries
substantially in the form of the consolidating financial statements for
such corporate office and principal operating centers as at and for the
Company's fiscal year ended December 31, 1995 heretofore delivered to the
Banks.
"Continue", "Continuation" and "Continued" shall refer to the
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continuation pursuant to Section 2.09 hereof of a Eurodollar Loan as a
Eurodollar Loan from one Interest Period to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion
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pursuant to Section 2.09 hereof of one Type of Syndicated Loans into
another Type of Syndicated Loans, which may be accompanied by the transfer
by a Bank (at its sole discretion) of a Loan from one Applicable Lending
Office to another.
"Credit Documents" shall mean this Agreement and the Notes.
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"Debt Service" shall mean, for any period, the sum, for the Company
------------
and the Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all regularly
scheduled payments of principal of Indebtedness (including, without
limitation, the principal component of any payments in respect of Capital
Lease Obligations but excluding amounts repaid under Working Capital Credit
Lines) made during such period plus (b) all Interest Expense for such
----
period.
"Default" shall mean an Event of Default or an event which with notice
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or lapse of time or both would become an Event of Default.
"Disclosure Schedule" shall mean the Disclosure Schedule to the Asset
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Purchase Agreement, dated as of January 3, 1996, as modified and
supplemented and in effect from time to time.
"Disposition" shall mean any sale, assignment, transfer or other
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disposition of any Property (whether now owned or hereafter acquired) by
the Company or any of the Subsidiaries to any other Person excluding (i)
any sale, assignment, transfer or other disposition of any inventory sold
or disposed of in the ordinary course of business and on ordinary business
terms and (ii) sales of ownership interests in receivables pursuant to a
Permitted Receivables Sale Agreement. The term "Dispose" shall have a
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correlative meaning.
Credit Agreement
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"Dollars" and "$" shall mean lawful money of the United States of
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America.
"Environmental Laws" shall mean any and all Federal, state, local and
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foreign laws, rules or regulations, and any orders or decrees, in each case
as now or hereafter in effect, relating to the regulation or protection of
human health, safety or the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals or
toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface
water, ground water, wetlands, land or subsurface strata, or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes.
"Equity" shall mean (i) any capital stock or any warrants, options or
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rights exercisable in respect of capital stock, including any capital stock
issued upon the exercise of any such warrants, options or rights (other
than any capital stock, warrants, options or rights issued to directors,
officers or employees of the Company or any of the Subsidiaries pursuant to
employee benefit plans, stock option plans or long-term incentive plans
established in the ordinary course of business and any capital stock of the
Company issued upon the exercise of such warrants, options or rights) or
(ii) any other security or instrument representing an equity interest in
the Company or any of the Subsidiaries.
"Equity Issuance" shall mean (a) any issuance or sale (including,
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without limitation, issuance or sale as a result of a conversion or
exchange of debt securities) by the Company of Equity or (b) the receipt by
the Company of any capital contribution (whether or not evidenced by any
equity security issued by the Company).
"ERISA" shall mean the Employee Retirement Income Security Act of
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1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business
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which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company or is under common
control (within the meaning of Section 414(c) of the Code) with the
Company.
"Eurodollar Loans" shall mean Syndicated Loans the interest rates on
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which are determined on the basis of rates
Credit Agreement
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referred to in the definition of "Fixed Base Rate" in this Section 1.01.
"Event of Default" shall have the meaning assigned to such term in
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Section 9 hereof.
"Excess Cash Flow" shall mean, for any fiscal year of the Company, the
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excess of (a) Cash Flow for such fiscal year over (b) the sum of (i)
Capital Expenditures made during such fiscal year plus (ii) the aggregate
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amount of Debt Service for such fiscal year plus (iii) cash taxes on or
----
measured by income paid in such fiscal year plus (iv) the amount by which
----
Working Capital as at the last day of such fiscal year exceeds Working
Capital as at the later of March 31, 1996 and the last day of the
immediately preceding fiscal year (or minus the amount by which Working
-----
Capital as at the later of March 31, 1996 and the last day of the
immediately preceding fiscal year exceeds Working Capital as at the last
day of such fiscal year).
"Exchange Act" shall mean the Securities Exchange Act of 1934,
------------
together with the Rules and Regulations of the SEC thereunder, as amended.
"Existing Credit Agreement" shall have the meaning given to such term
-------------------------
in the preamble hereto.
"Existing Banks" shall mean the lenders party to the Existing Credit
--------------
Agreement.
"Facility" shall mean the Revolving Credit Facility, the Series I Term
--------
Loan Facility and the Series II Term Loan Facility.
"Federal Funds Rate" shall mean, for any day, the rate per annum
------------------
(rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day
and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to Chase on such day on
such transactions as determined by the Administrative Agent.
Credit Agreement
----------------
- 12 -
"Fees" shall mean commitment fees and facility fees payable pursuant
----
to Section 2.05 hereof.
"Final Risk-Based Capital Guidelines" shall mean (a) the Final Risk-
-----------------------------------
Based Capital Guidelines of the Board of Governors of the Federal Reserve
System (12 C.F.R. Part 208, Appendix A and ▇▇ ▇.▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇)
and (b) the Final Risk-Based Capital Guidelines of the Office of the
Comptroller of the Currency (12 C.F.R. Part 3, Appendix A), and any
successor or supplemental regulations to either (a) or (b), in each case,
as amended, supplemented and otherwise modified and in effect from time to
time.
"Fiscal Dates" shall mean the last day of each March, June, September
------------
and December in each year, the first of which shall be the first such day
after the Restatement Date.
"Fixed Base Rate" shall mean, with respect to any Fixed Rate Loan for
---------------
any Interest Period therefor:
(a) the rate per annum appearing on the Telerate Screen Page 3750 (or
such other page as may replace that page in that service) as of 11:00 a.m.
London time two Business Days prior to the first day of such Interest
Period for such Loan as the London Interbank Offered Rate for Dollar
deposits having a term comparable to such Interest Period and (if
applicable) in an amount of $1,000,000 or more; or
(b) if no such rate appears on the Telerate Screen Page 3750 or, if
said page shall cease to be publicly available or if the information
contained on said page, in the reasonable judgment of the Managing Banks,
shall cease accurately to reflect the rate offered by leading banks in the
London interbank market ("London Interbank Offered Rate") (as reported by
-----------------------------
any publicly available source of similar market data selected by the
Managing Banks that, in the reasonable judgment of the Managing Banks,
accurately reflects the London Interbank Offered Rate), the arithmetic mean
(rounded, if necessary, to the nearest 1/16 of 1%), as determined by the
Administrative Agent, of the rate per annum quoted by each Reference Bank
at approximately 11:00 a.m. London time (or as soon thereafter as
practicable) on the date two Business Days prior to the first day of such
Interest Period for such Loan for the offering by such Reference Bank to
leading banks in the London interbank market of Dollar deposits having a
term comparable to such Interest Period and in an amount comparable to the
principal amount of the Eurodollar Loan or LIBOR Bid Loan to be made by
such Reference Bank for such
Credit Agreement
----------------
- 13 -
Interest Period; provided that (i) if any Reference Bank is not
--------
participating in any Fixed Rate Loans during any Interest Period therefor,
the Fixed Base Rate for such Loan shall be determined by reference to the
amount of the Loan which such Reference Bank would have made had it been
participating in such Loan during such Interest Period; (ii) in determining
the Fixed Base Rate with respect to any LIBOR Bid Loan, each Reference Bank
shall be deemed to have made a LIBOR Bid Loan in an amount equal to
$10,000,000; and (iii) if any Reference Bank does not timely furnish such
information for determination of any Fixed Base Rate, the Administrative
Agent shall determine such Fixed Base Rate on the basis of information
timely furnished by the remaining Reference Banks.
"Fixed Charge Coverage Ratio" shall mean, as at any date, the ratio of
---------------------------
(a) the sum of (i) Cash Flow for the period of four (or, if less, the
number of full fiscal quarters of the Company since the Amendment Effective
Date) consecutive fiscal quarters of the Company ending on or most recently
ended prior to such date minus (ii) Capital Expenditures during such period
to (b) the sum of (i) Interest Expense for such period plus (ii) Restricted
----
Payments made during such period.
"Fixed Rate Loans" shall mean Eurodollar Loans and, for the purposes
----------------
of the definition of "Fixed Base Rate" herein and Section 5 hereof, LIBOR
Bid Loans.
"Funded Debt" shall mean any obligation of the Company or any
-----------
Subsidiary for borrowed money or the purchase price of Property which is
shown on the financial statements as a liability, including (a) Capital
Lease Obligations and (b) Guarantees which are deemed Funded Debt under
Section 8.08 hereof but excluding (i) items customarily reflected as
current liabilities and classified as other than debt (it being understood
that progress payments, trade accounts payable, obligations under leases
which are not capitalized leases and income taxes payable are excluded from
"Funded Debt" under this definition), (ii) deferred income taxes and (iii)
obligations under a Permitted Receivables Sale Agreement.
"Funded Debt to Cash Flow Ratio" shall mean, as at any date, the ratio
------------------------------
of (a) Funded Debt as at such date to (b) (x) prior to the completion of
four full fiscal quarters of the Company since the Amendment Effective
Date, Cash Flow for the period of such number of full fiscal quarters of
the Company since the Amendment Effective Date multiplied by a fraction,
the numerator of which is four (4) and the denominator of which shall be
such number of full fiscal
Credit Agreement
----------------
- 14 -
quarters of the Company since the Amendment Effective Date and (y)
thereafter, Cash Flow for the period of four consecutive fiscal quarters of
the Company ending on or most recently ended prior to such date.
"GAAP" shall mean generally accepted accounting principles applied on
----
a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for the
purposes of determining compliance with this Agreement.
"Government" shall mean the United States of America or any department
----------
or agency thereof.
"Grumman" shall mean Grumman Corporation, a New York corporation and,
-------
on the Restatement Date, a Wholly-Owned Subsidiary of the Company, or any
successor thereto.
"Guarantee" shall mean, with respect to any Person, a guarantee, an
---------
endorsement, a contingent agreement to purchase or to furnish funds for the
payment or maintenance of, or otherwise to be or become contingently liable
under or with respect to, the Indebtedness, other obligations, net worth,
working capital or earnings of any other Person, or a guarantee of the
payment of dividends or other distributions upon the stock or equity
interests of any other Person, or an agreement to purchase, sell or lease
(as lessee or lessor) Property, products, materials, supplies or services
primarily for the purpose of enabling any other Person to make payment of
its obligations or an agreement to assure a creditor of such Person against
loss, and including, without limitation, causing a bank or other financial
institution to issue a standby letter of credit or other similar instrument
supporting the obligations of another Person, but excluding (i)
endorsements for collection or deposit in the ordinary course of business
and (ii) obligations of such Person under a Permitted Receivables Sale
Agreement. The amount of any Guarantee in respect of Indebtedness shall be
deemed to be an amount equal to the stated or determinable amount of the
related Indebtedness (unless the Guarantee is limited by its terms to a
lesser amount, in which case, to the extent of such amount) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by such Person in good faith. The terms
"Guarantee" and "Guaranteed" used as a verb shall have a correlative
--------- ----------
meaning.
"Indebtedness" shall mean, for any Person: (a) obligations created,
------------
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another
Person
Credit Agreement
----------------
- 15 -
subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person
to pay the deferred purchase or acquisition price of Property or services,
other than trade accounts payable (other than for borrowed money) arising,
and accrued expenses incurred, in the ordinary course of business so long
as such trade accounts payable are payable within 180 days of the date the
respective goods are delivered or the respective services are rendered; (c)
Indebtedness of others secured by a Lien on the Property of such Person,
whether or not the respective indebtedness so secured has been assumed by
such Person (but only to the extent of the fair market value of such
Property if not assumed by such Person); (d) obligations (contingent or
otherwise) in respect of letters of credit, banker's acceptances and
similar instruments issued or accepted for account of such Person; (e)
Capital Lease Obligations of such Person; (f) Guarantees by such Person of
Indebtedness of others; and (g) Interest Rate Protection Agreements. The
term "Indebtedness" shall not include the obligations of such Person under
a Permitted Receivables Sale Agreement.
"Information Memorandum" shall mean the Confidential Information
----------------------
Memorandum dated January 1996 distributed to the Banks.
"Interest Expense" shall mean, for any period, the sum, for the
----------------
Company and the Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Funded Debt (including, without limitation, the interest
component of any payments in respect of Capital Lease Obligations) accrued
or capitalized during such period (whether or not actually paid during such
period) plus (b) the net amount payable (or minus the net amount
---- -----
receivable) under Interest Rate Protection Agreements during such period
(whether or not actually paid or received during such period) minus (c) all
-----
interest income accrued during such period (whether or not actually
received during such period).
"Interest Period" shall mean:
---------------
(a) With respect to any Eurodollar Loan, the period commencing
on the date such Eurodollar Loan is made or Converted from a Loan of
another Type or the last day of the next preceding Interest Period for
such Loan and ending on the numerically corresponding day in the
first, second, third, sixth or (with the consent of all Banks) twelfth
calendar month thereafter, as the Company may select as provided in
Section 2.02 hereof,
Credit Agreement
----------------
- 16 -
except that each such Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate
subsequent calendar month.
(b) With respect to any Set Rate Loan, the period commencing on
the date such Set Rate Loan is made and ending on any Business Day up
to and including 360 days thereafter, as the Company may select as
provided in Section 2.03(b) hereof.
(c) With respect to any LIBOR Bid Loan, the period commencing on
the date such LIBOR Bid Loan is made and ending on the numerically
corresponding day in the first, second, third, sixth or twelfth
calendar month thereafter, as the Company may select as provided in
Section 2.03(b) hereof, except that each such Interest Period which
commences on the last Business Day of a calendar month (or any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period for any Revolving
Loan may end after the Revolving Commitment Termination Date and no
Interest Period for any Series I Term Loan may end after the Series I Term
Loan Final Maturity Date; (ii) no Interest Period for any Series II Term
Loan may commence before and end after any Series II Principal Payment Date
unless, after giving effect thereto, the aggregate principal amount of the
Series II Term Loans having Interest Periods that end after such Series II
Principal Payment Date shall be equal to or less than the aggregate
principal amount of the Series II Term Loans scheduled to be outstanding
after giving effect to the payments of principal required to be made on
such Series II Principal Payment Date; (iii) each Interest Period which
would otherwise end on a day which is not a Business Day shall end on the
next succeeding Business Day (or, in the case of an Interest Period for
Eurodollar Loans or LIBOR Bid Loans, if such next succeeding Business Day
falls in the next succeeding calendar month, on the next preceding Business
Day); (iv) notwithstanding clauses (i) and (ii) above, no Interest Period
for any Eurodollar Loans or LIBOR Bid Loans shall have a duration of less
than one month and, if the Interest Period for any Eurodollar Loans would
otherwise be a shorter period, such Loans shall not be available hereunder.
Credit Agreement
----------------
- 17 -
"Interest Rate Protection Agreement" shall mean, for any Person, an
----------------------------------
interest rate swap, cap or collar agreement or similar arrangement between
such Person and one or more financial institutions providing for the
transfer or mitigation of interest rate risks either generally or under
specific contingencies and entered into as bona fide ▇▇▇▇▇▇ (and not for
---------
speculative purposes) against such interest rate risks.
"Investment" shall mean, for any Person: (a) the acquisition (whether
----------
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of
any securities at a time when such securities are not owned by the Person
entering into such sale); (b) the making of any deposit with, or advance,
loan or other extension of credit to, any other Person (including the
purchase of Property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such Property to such
Person), but excluding any such advance, loan or extension of credit having
a term not exceeding 180 days arising in connection with the sale of
inventory or supplies by such Person in the ordinary course of business; or
(c) the entering into of any Guarantee of, or other contingent obligation
with respect to, Indebtedness or other liability of any other Person and
(without duplication) any amount committed to be advanced, lent or extended
to such Person.
"Investment Grade Rating Period" shall mean, after (i) the
------------------------------
consummation of the Acquisition (or the express statement by ▇▇▇▇▇'▇ and
S&P that the same has been taken into account in reaffirming or announcing
the ratings referred to in clause (ii) below) and (ii) the date on which
both ▇▇▇▇▇'▇ and S&P shall have first either reaffirmed or announced
revised ratings for the Company Senior Long-Term Debt, any period during
which the rating of Company Senior Long-Term Debt is BBB- or higher by S&P
(or a Substitute Rating is at the corresponding rating level or higher) or
Baa3 or higher by ▇▇▇▇▇'▇ (or a Substitute Rating is at the corresponding
rating level or higher).
"Leverage Ratio" shall mean, at any time, the ratio of (a) the
--------------
aggregate amount (determined without duplication on a consolidated basis)
of all Funded Debt outstanding at such time to (b) the sum of (i)
Consolidated Shareholders' Equity at such time plus (ii) all Funded Debt
outstanding at such time.
Credit Agreement
----------------
- 18 -
"LIBO Rate" shall mean, for any LIBOR Bid Loan, a rate per annum
---------
determined by the Administrative Agent to be equal to the rate of interest
specified in the definition of "Fixed Base Rate" in this Section 1.01 for
the Interest Period for such Loan.
"LIBOR Auction" shall mean a solicitation of Competitive Bid Quotes
-------------
setting forth Competitive Bid Margins based on the LIBO Rate pursuant to
Section 2.03 hereof.
"LIBOR Bid Loans" shall mean Competitive Bid Loans the interest rates
---------------
on which are determined on the basis of LIBO Rates pursuant to a LIBOR
Auction.
"Lien" shall mean, with respect to any asset, any mortgage, lien,
----
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. The term "Lien" shall not include the ownership interests in
----
receivables acquired by a purchaser under a Permitted Receivables Sale
Agreement.
"Loans" shall mean Competitive Bid Loans, Syndicated Loans and
-----
Swingline Loans.
"Majority Banks" shall mean Banks holding more than 50% of the
--------------
aggregate amount of (a) the Revolving Credit Commitments or, if the
Revolving Credit Commitments shall have terminated, the sum of (i) the
aggregate unpaid principal amount of the Revolving Loans plus (ii) the
aggregate unpaid principal amount of the Competitive Bid Loans plus (b) the
Series I Term Loan Commitments or, if the Series I Term Loan Commitments
shall have terminated, the aggregate principal amount of the Series I Term
Loans plus (c) the Series II Term Loan Commitments or, if the Series II
Term Loan Commitments shall have terminated, the aggregate principal amount
of the Series II Term Loans.
"Managing Banks" shall mean Chase, Chemical Bank and Bank of America
--------------
N.T. & S.A.
"Mandatory Prepayment Period" shall mean any period during which one
---------------------------
or more of the following conditions is satisfied: (a) any principal of the
Series I Term Loans is outstanding; or (b) the Leverage Ratio is greater
than 50%; or (c) an Investment Grade Rating Period does not exist; or (d)
the Administrative Agent shall not have received the financial statements
and certificate referred to in clause (a) of the definition of the term
"Applicable Margin" in this Section 1.01.
Credit Agreement
----------------
- 19 -
"Material Adverse Effect" shall mean a material adverse effect on (a)
-----------------------
the business, operations, condition (financial or otherwise) or prospects
of the Company and the Subsidiaries taken as a whole, (b) the consummation
of the Acquisition, (c) the ability of the Company to perform its
obligations under any of the Credit Documents, (d) the validity or
enforceability of any of the Credit Documents, (e) the rights and remedies
of the Banks and the Administrative Agent under any of the Credit Documents
or (f) the timely payment of the principal of or interest on the Loans or
other amounts payable in connection therewith.
"Material Subsidiary" shall mean, at any time, any Subsidiary if, at
-------------------
such time, such Subsidiary would qualify as a "significant subsidiary"
under Regulation S-X of the SEC as in effect on the Restatement Date.
Notwithstanding the foregoing so long as ▇▇▇▇▇▇ Aircraft Company is a
Subsidiary, it shall be deemed to be a Material Subsidiary for purposes of
this Agreement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
-------
thereto.
"▇▇▇▇▇'▇ Rating" shall mean, as at any date, the rating most recently
--------------
published by Moody's relating to the Company Senior Long-Term Debt.
"Multiemployer Plan" shall mean a multiemployer plan defined as such
------------------
in Section 3(37) of ERISA to which contributions have been made by the
Company or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Available Proceeds" shall mean:
----------------------
(a) in the case of any Disposition, the amount of Net Cash Payments
received in connection with such Disposition; and
(b) in the case of any Equity Issuance, the aggregate amount of all
cash or cash equivalents received by the Company and the Subsidiaries in
respect of such Equity Issuance net of all expenses incurred by the Company
and the Subsidiaries in connection therewith.
"Net Cash Payments" shall mean, with respect to any Disposition, the
-----------------
aggregate amount of all cash payments, and the fair market value of any
non-cash consideration, received by the Company and the Subsidiaries
directly or indirectly in connection with such Disposition; provided that
--------
(a) Net Cash Payments shall be net of (i) the amount of any legal,
title and recording tax expenses, commissions and
Credit Agreement
----------------
- 20 -
other fees and expenses paid by the Company and the Subsidiaries in
connection with such Disposition and (ii) any Federal, state and local
income or other taxes estimated in good faith to be payable by the Company
and the Subsidiaries as a result of such Disposition, (b) Net Cash Payments
shall not include any cash payments plus the fair market value of any non-
cash consideration of less than $5,000,000 in the aggregate from any one
Disposition or a series of related Dispositions and (c) Net Cash Payments
shall be net of any repayments by the Company or any of the Subsidiaries of
Indebtedness to the extent that (i) such Indebtedness is secured by a Lien
on the Property that is the subject of such Disposition and (ii) the
transferee of (or holder of a Lien on) such Property requires that such
Indebtedness be repaid as a condition to the purchase of such Property;
provided further that Net Cash Payments with respect to any Disposition
that is made during any period that is not a Mandatory Prepayment Period
shall be equal to zero.
"Net Income" shall mean, for the Company and the Subsidiaries
----------
(determined on a consolidated basis without duplication in accordance with
GAAP) for any fiscal period, an amount equal to the consolidated net income
for such fiscal period.
"Notes" shall mean the Syndicated Notes, the Competitive Bid Notes and
-----
the Swingline Note.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
----
entity succeeding to any or all of its functions under ERISA.
"Permitted Buyer Indebtedness" shall mean, in connection with the
----------------------------
Disposition of real Property only, Indebtedness of the purchaser(s)
thereof, secured by a Lien on such Property and having a final maturity not
exceeding five years from the date of such Disposition, to the extent that
the amount of such Indebtedness permitted by the Company and the
Subsidiaries to be created after the Amendment Effective Date does not
exceed $100,000,000 in the aggregate.
"Permitted Receivables Sale Agreements" shall mean (a) the CIBC
-------------------------------------
Receivables Sale Agreements and (b) any other receivables sale agreement
that replaces the CIBC Receivables Sale Agreements; provided that (i) the
--------
operative provisions thereof conform in all material respects to those
contained in the CIBC Receivables Sale Agreements and (ii) the aggregate
"Investment" (as defined in the CIBC Receivables Sale Agreements) does not
exceed at any one time
Credit Agreement
----------------
- 21 -
outstanding $75,000,000 in the aggregate as to all Permitted Receivable
Sale Agreements.
"Person" shall mean an individual, a corporation, a company, a
------
voluntary association, a partnership, a limited liability company, a trust,
an unincorporated organization or a government or any agency,
instrumentality or political subdivision thereof.
"Plan" shall mean an employee benefit or other plan established or
----
maintained by the Company or any ERISA Affiliate and which is covered by
Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any principal of any
-----------------
Loan or any other amount payable by the Company under this Agreement or any
Note which is not paid when due (whether at stated maturity, by
acceleration or otherwise), a rate per annum during the period commencing
on the due date until such amount is paid in full equal to 2% plus the Base
Rate as in effect from time to time plus the Applicable Margin (if any)
(provided that, if such amount in default is principal of a Eurodollar Loan
--------
or a Competitive Bid Loan and the due date is a day other than the last day
of the Interest Period therefor, the "Post-Default Rate" for such principal
shall be, for the period commencing on the due date and ending on the last
day of the Interest Period therefor, 2% plus the interest rate for such
Loan as provided in Section 3.02 hereof and, thereafter, the rate otherwise
provided in this definition).
"Prime Rate" shall mean the arithmetic mean (rounded, if necessary, to
----------
the nearest 1/16 of 1%), as determined by the Administrative Agent, of the
rate of interest from time to time announced by each Reference Bank at its
principal office as its prime commercial lending rate.
"Principal Office" shall mean the principal office of Chase, located
----------------
on the Restatement Date at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
"Projections" shall have the meaning provided in Section 7.02(d)
-----------
hereof.
"Property" shall mean any right or interest in or to property of any
--------
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Quarterly Dates" shall mean each quarterly anniversary of the
---------------
Restatement Date, the first of which shall be the first such day after the
Restatement Date; provided that if
--------
Credit Agreement
----------------
- 22 -
any such day is not a Business Day, the relevant Quarterly Date shall be
the immediately succeeding Business Day.
"Quarterly Period" shall mean the period from but excluding one Fiscal
----------------
Date through and including the next succeeding Fiscal Date.
"Quotation Date" shall have the meaning assigned to such term in
--------------
Section 2.03(b) hereof.
"Rating Level 1" shall mean, (a) no Default has occurred and is
--------------
continuing and (b) the ▇▇▇▇▇'▇ Rating is at Baa2 or higher (or a Substitute
Rating is at the corresponding rating level or higher) or the S&P Rating is
at BBB or higher (or a Substitute Rating is at the corresponding rating
level or higher); "Rating Level 2" shall mean (a) no Default has occurred
--------------
and is continuing, (b) the ▇▇▇▇▇'▇ Rating is at Baa3 or higher (or a
Substitute Rating is at the corresponding rating level or higher) or the
S&P Rating is at BBB- or higher (or a Substitute Rating is at the
corresponding rating level or higher) and (c) Rating Level 1 is not in
effect; provided that (A) neither Rating Level 1 nor Rating Level 2 shall
--------
exist at any time before (i) the consummation of the Acquisition or (ii)
the date on which both Moody's and S&P shall have first either reaffirmed
or announced revised ratings for the Company Senior Long-Term Debt, and (B)
for purposes of both Rating ▇▇▇▇▇ ▇ and Rating ▇▇▇▇▇ ▇, in the event that
the rating levels are split, the higher of the two rating levels shall
apply.
"Reference Banks" shall mean Chase, Chemical Bank, Bank of America
---------------
National Trust and Savings Association and ▇▇▇▇▇▇ Guaranty Trust Company of
New York (or their Applicable Lending Offices, as the case may be).
"Regulation A", "Regulation D", "Regulation U" and "Regulation X"
---------------------------------------------------------------
shall mean, respectively, Regulation A, Regulation D, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System (or
any successor), as the same may be modified and supplemented and in effect
from time to time.
"Regulatory Change" shall mean, with respect to any Bank, any change
-----------------
after the Restatement Date in United States Federal, state or foreign law
or regulations (including Regulation D) or the adoption or making after
such date of any interpretations, directives or requests applying to a
class of banks including such Bank of or under any United States Federal,
state or foreign law or regulations (whether or not having the force of
law) by any court or governmental
Credit Agreement
----------------
- 23 -
or monetary authority charged with the interpretation or administration
thereof.
"Restatement Date" shall mean March 1, 1996.
----------------
"Restricted Payment" shall mean any dividend (other than dividends
------------------
payable solely in stock of the Company) or any other distribution with
respect to any stock of the Company, whether now or hereafter outstanding,
or any payment on account of the purchase, acquisition, redemption or other
retirement, directly or indirectly, of any shares of such stock.
"Restricted Subsidiary" shall have the meaning assigned to such term
---------------------
in the Senior Indenture.
"Revolving Commitment Termination Date" shall mean the Quarterly Date
-------------------------------------
falling on or nearest to the date six years after the Restatement Date.
"Revolving Credit Banks" shall mean (a) on the Amendment Effective
----------------------
Date, the Banks having Revolving Credit Commitments in Schedule I hereto
and (b) thereafter, the Banks from time to time holding Revolving Loans
and/or Revolving Credit Commitments after giving effect to any assignments
thereof permitted by Section 11.06 hereof.
"Revolving Credit Commitment" shall mean, for each Revolving Credit
---------------------------
Bank, the obligation of such Bank to make Revolving Loans in an aggregate
principal amount at any one time outstanding up to but not exceeding the
amount set opposite the name of such Bank on Schedule I hereto under the
caption "Revolving Credit Commitment" (as the same may be reduced from time
to time pursuant to Section 2.04 hereof or reduced or increased pursuant to
Section 11.06 hereof). The aggregate amount of the Revolving Credit
Commitments on the Amendment Effective Date is $1,800,000,000.
"Revolving Credit Facility" shall mean the Facility constituted by the
-------------------------
Revolving Credit Commitments.
"Revolving Loans" shall mean the loans provided for by Section 2.01(c)
---------------
hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Revolving Notes" shall mean the promissory notes provided for by
---------------
Section 2.08(a)(iii) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be
modified and supplemented and in effect from time to time.
Credit Agreement
----------------
- 24 -
"S&P" shall mean Standard & Poor's Ratings Group, or any successor
---
thereto.
"S&P Rating" shall mean, as at any date, the rating most recently
----------
published by S&P relating to the Company Senior Long-Term Debt.
"SEC" shall mean the Securities and Exchange Commission or any
---
successor thereto.
"Securities Act" shall mean the Securities Act of 1933, together with
--------------
the Rules and Regulations of the SEC thereunder, as amended.
"Seller" shall mean Westinghouse Electric Corporation, a Pennsylvania
------
corporation.
"Senior Indenture" shall mean the Indenture dated as of October 15,
----------------
1994 between the Company and Chase, as trustee, as supplemented by the
Officers' Certificate dated as of February 27, 1996 pursuant to Sections
201, 301 and 303 of such Indenture, and as the same shall be further
modified and supplemented and in effect from time to time.
"Series I Term Loans" shall mean the loans provided for by Section
-------------------
2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Series I Term Loan Banks" shall mean (a) on the Amendment Effective
------------------------
Date, the Banks having Series I Term Loan Commitments in Schedule I hereto
and (b) thereafter, the Banks from time to time holding Series I Term Loans
and/or Series I Term Loan Commitments after giving effect to any
assignments thereof permitted by Section 11.06 hereof.
"Series I Term Loan Commitment" shall mean, for each Series I Term
-----------------------------
Loan Bank, the obligation of such Bank to make one or more Series I Term
Loans in an aggregate amount up to but not exceeding the amount set
opposite the name of such Bank on Schedule I hereto under the caption
"Series I Term Loan Commitment" (as the same may be reduced from time to
time pursuant to Section 2.04 hereof or reduced or increased pursuant to
Section 11.06 hereof). The aggregate amount of the Series I Term Loan
Commitments on the Amendment Effective Date is $500,000,000.
"Series I Term Loan Facility" shall mean the Facility constituted by
---------------------------
the Series I Term Loan Commitments.
Credit Agreement
----------------
- 25 -
"Series I Term Loan Final Maturity Date" shall mean the Quarterly Date
--------------------------------------
falling on or nearest to the date two years after the Restatement Date.
"Series II Principal Payment Date" shall mean each Quarterly Date of
--------------------------------
each year, commencing with the first such Quarterly Date following the
Restatement Date through and including the Series II Term Loan Final
Maturity Date.
"Series II Term Loan Banks" shall mean (a) on the Amendment Effective
-------------------------
Date, the Banks having Series II Term Loan Commitments in Schedule I hereto
and (b) thereafter, the Banks from time to time holding Series II Term
Loans and/or Series II Term Loan Commitments after giving effect to any
assignments thereof permitted by Section 11.06 hereof.
"Series II Term Loan Commitment" shall mean, for each Series II Term
------------------------------
Loan Bank, the obligation of such Bank to make one or more Series II Term
Loans in an aggregate amount up to but not exceeding the amount set
opposite the name of such Bank on Schedule I hereto under the caption
"Series II Term Loan Commitment" (as the same may be reduced from time to
time pursuant to Section 2.04 hereof or reduced or increased pursuant to
Section 11.06 hereof). The aggregate amount of the Series II Term Loan
Commitments on the Amendment Effective Date is $1,500,000,000.
"Series II Term Loan Facility" shall mean the Facility constituted by
----------------------------
the Series II Term Loan Commitments.
"Series II Term Loan Final Maturity Date" shall mean the Quarterly
---------------------------------------
Date falling on or nearest to the date six years after the Restatement
Date.
"Series II Term Loans" shall mean the loans provided for by Section
--------------------
2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"Set Rate Auction" shall mean a solicitation of Competitive Bid Quotes
----------------
setting forth Competitive Bid Rates pursuant to Section 2.03 hereof.
"Set Rate Loans" shall mean Competitive Bid Loans the interest rates
--------------
on which are determined on the basis of Competitive Bid Rates pursuant to a
Set Rate Auction.
"Subordinated Indebtedness" shall mean, with respect to the Company,
-------------------------
(a) Indebtedness issued pursuant to the Subordinated Indenture (i) that
does not have any principal or sinking fund payment due prior to the
Revolving
Credit Agreement
----------------
- 26 -
Commitment Termination Date or the Series II Term Loan Final Maturity Date
and (ii) in respect of which interest is payable not more often than semi-
annually and (b) Indebtedness (i) for which the Company is directly and
primarily liable, (ii) in respect of which none of the Subsidiaries is
contingently or otherwise obligated, (iii) that does not have any principal
or sinking fund payment due prior to the Revolving Commitment Termination
Date or the Series II Term Loan Final Maturity Date, (iv) in respect of
which interest is payable not more often than semi-annually and (v) that is
subordinated to the obligations of the Company to pay principal of and
interest on the Loans and Notes and Fees and other amounts payable
hereunder on terms, and pursuant to documentation containing other terms
(including covenants and events of default), that are no less favorable to
the Banks than those contained in the Subordinated Indenture.
"Subordinated Indenture" shall mean the form of Indenture filed as
----------------------
Exhibit 4-6 to the Company's Registration Statement on Form S-3 filed with
the SEC on August 19, 1994, as amended by the Company's Form 8-K filed with
the SEC on February 28, 1996.
"Subsidiary" shall mean any corporation, partnership or other entity
----------
of which at least a majority of the securities or other ownership interests
having by the terms thereof ordinary voting power to elect (whether
immediately or ultimately) a majority of the board of directors or other
Persons performing similar functions of such corporation, partnership or
other entity (irrespective of whether or not at the time securities or
other ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by the Company or one or more of
the Subsidiaries or by the Company and one or more of the Subsidiaries.
"Wholly-Owned Subsidiary" shall mean any such corporation, partnership or
-----------------------
other entity of which all of the equity securities or other ownership
interests (other than, in the case of a corporation, directors' qualifying
shares) are so owned or controlled.
"Substitute Rating" shall mean, as at any date, the rating most
-----------------
recently published by a Substitute Rating Agency relating to the Company
Senior Long-Term Debt; provided that, for all purposes of the Credit
Documents, the same Substitute Rating may not be substituted for both the
▇▇▇▇▇'▇ Rating and the S&P Rating.
Credit Agreement
----------------
- 27 -
"Substitute Rating Agency" shall mean any rating agency (other than
------------------------
Moody's or S&P) proposed by the Company and acceptable to the Managing
Banks in their reasonable determination.
"Swingline Borrowing Notice" shall have the meaning assigned to such
--------------------------
term in Section 2.11(b) hereof.
"Swingline Commitment" shall mean the obligation of the Swingline Bank
--------------------
to make Swingline Loans pursuant to Section 2.11 hereof in an aggregate
amount at any one time outstanding up to but not exceeding the amount set
opposite the Swingline Bank's name on the signature pages hereof under the
caption "Swingline Commitment" (as the same may be reduced, assigned or
otherwise transferred at any time or from time to time pursuant to Section
2.04 or 11.06 hereof).
"Swingline Loans" shall mean the loans provided for by Section 2.11
---------------
hereof.
"Swingline Maturity Date" shall have the meaning assigned to such term
-----------------------
in Section 3.01(e) hereof.
"Swingline Note" shall mean the promissory note provided for by
--------------
Section 2.08(c) hereof, as the same shall be modified and supplemented and
in effect from time to time.
"Syndicated Loans" shall mean the loans provided for by Section 2.01
----------------
hereof.
"Syndicated Notes" shall mean the promissory notes provided for by
----------------
Section 2.08(a) hereof and all promissory notes delivered in substitution
or exchange therefor, in each case as the same shall be modified and
supplemented and in effect from time to time.
"Term Loan Banks" shall mean the Series I Term Loan Banks and the
---------------
Series II Term Loan Banks.
"Term Loans" shall mean the Series I Term Loans and the Series II Term
----------
Loans.
"Term Loan Commitments" shall mean the Series I Term Loan Commitments
---------------------
and the Series II Term Loan Commitments.
"Term Loan Commitment Termination Date" shall mean March 29, 1996.
-------------------------------------
"Term Notes" shall mean the promissory notes provided for by Section
----------
2.08(a)(i) and (ii) hereof and all promissory notes delivered in
substitution or exchange therefor, in
Credit Agreement
----------------
- 28 -
each case as the same shall be modified and supplemented and in effect from
time to time.
"Type" shall have the meaning assigned to such term in Section 1.03
----
hereof.
"Working Capital" shall mean, at any time, for the Company and the
---------------
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), the amount by which (i) total current assets
(excluding cash and cash equivalents) exceeds (ii) total current
liabilities.
"Working Capital Credit Lines" shall mean uncommitted short-term
----------------------------
unsecured credit facilities (including, without limitation, commercial
paper facilities) extended to the Company for working capital purposes.
1.02 Accounting Terms and Determinations.
-----------------------------------
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Banks hereunder shall (unless otherwise disclosed to the Banks in writing at the
time of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest
corresponding financial statements furnished to the Banks hereunder after the
Restatement Date (or, until such financial statements are furnished, consistent
with those used in the preparation of the financial statements referred to in
Section 7.02(a) hereof). All calculations made for the purposes of determining
compliance with the provisions of this Agreement shall (except as otherwise
expressly provided herein) be made by application of generally accepted
accounting principles applied on a basis consistent with those used in the
preparation of the latest corresponding annual or quarterly financial statements
furnished to the Banks pursuant to Section 8.01 hereof (or, until such financial
statements are furnished, consistent with those used in the preparation of the
financial statements referred to in Section 7.02(a) hereof) unless (i) the
Company shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements or (ii) the Majority Banks shall
so object in writing within 30 days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 8.01 hereof,
Credit Agreement
----------------
- 29 -
shall mean the financial statements referred to in Section 7.02(a) hereof).
(b) The Company shall deliver to the Banks at the same time as the
delivery of any annual or quarterly financial statement under Section 8.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) above (which, in the case of the first financial statements
delivered under Section 8.01 hereof, shall mean the financial statements
referred to in Section 7.02(a) hereof) and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
(c) If, under the last sentence of paragraph (a) above, the Company
or the Majority Banks shall object to determining compliance with the covenants
contained herein based upon the latest financial statements delivered under
Section 8.01 hereof, and if the Company and the Banks (or the Majority Banks, as
the case may be) shall enter into an amendment or other modification of the
covenants and other terms and conditions of this Agreement which, in their sole
respective discretion, makes adequate adjustments for any material variation of
the type described in clause (i) of Section 1.02(b) hereof, then neither the
Company nor the Banks shall thereafter have any right to object to determining
compliance with the covenants contained herein based upon said financial
statements.
(d) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 8 hereof, the Company will not change
the last day of its fiscal year from December 31 of each year, or the last days
of the first three fiscal quarters in each of its fiscal years from March 31,
June 30 and September 30 of each year, respectively.
1.03 Classes and Types of Loans. Loans hereunder are distinguished
--------------------------
by "Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a
Loan) refers to whether such Loan is a Competitive Bid Loan, a Revolving Loan, a
Series I Term Loan, a Series II Term Loan or a Swingline Loan, each of which
constitutes a Class. The "Type" of a Loan refers to whether such Loan is a Base
Rate Loan, a Eurodollar Loan, a Set Rate Loan or a LIBOR Bid Loan, each of which
constitutes a Type. Loans may be identified by both Class and Type.
Credit Agreement
----------------
- 30 -
Section 2. Commitments.
-----------
2.01 Syndicated Loans. Subject to and upon the terms and conditions
----------------
herein set forth, each Bank severally agrees to make loans (each a "Syndicated
----------
Loan" and, collectively, the "Syndicated Loans") to the Company in Dollars up to
---- ----------------
but not exceeding the amount of such Bank's Commitment under each of the Series
I Term Loan Facility, the Series II Term Loan Facility and the Revolving Credit
Facility, as set forth below:
(a) Series I Term Loans. Syndicated Loans under the Series I Term
-------------------
Loan Facility shall be available at any time and from time to time from and
after the Amendment Effective Date to and including the Term Loan Commitment
Termination Date. Subject to the terms and conditions of this Agreement, Series
I Term Loans may, at the option of the Company, be borrowed and maintained as,
and/or Converted into, Base Rate Loans or Eurodollar Loans.
(b) Series II Term Loans. Syndicated Loans under the Series II Term
--------------------
Loan Facility shall be available at any time and from time to time from and
after the borrowing of the full amount of the Series I Term Loans to and
including the Term Loan Commitment Termination Date. Subject to the terms and
conditions of this Agreement, Series II Term Loans may, at the option of the
Company, be borrowed and maintained as, and/or Converted into, Base Rate Loans
or Eurodollar Loans.
(c) Revolving Loans. Syndicated Loans under the Revolving Credit
---------------
Facility shall be available at any time and from time to time from and after the
Amendment Effective Date to and including the Revolving Commitment Termination
Date. Subject to the terms and conditions of this Agreement, during such period,
Revolving Loans may be borrowed, repaid and reborrowed and may, at the option of
the Company, be borrowed and maintained as, and/or Converted into, Base Rate
Loans or Eurodollar Loans. Notwithstanding the foregoing, no Revolving Loan
shall be made if the sum of (i) such Revolving Loan (together with all other
Revolving Loans and Competitive Bid Loans to be made on the same day as such
Revolving Loan) plus (ii) the aggregate principal amount of all outstanding
Competitive Bid Loans plus (iii) the aggregate principal amount of all
outstanding Revolving Loans plus (iv) the aggregate principal amount of all
outstanding Swingline Loans exceeds the aggregate amount of the Revolving Credit
Commitments at such time.
2.02 Borrowings of Syndicated Loans.
------------------------------
(a) The Company shall give the Administrative Agent (which shall
promptly notify the Banks) notice of each borrowing of Syndicated Loans
hereunder as provided in Section 4.07 hereof.
Credit Agreement
----------------
- 31 -
Not later than 1:00 p.m. New York time on the date specified for each Syndicated
Loan borrowing hereunder, each Bank shall make available the amount of the
Syndicated Loan to be made by it on such date to the Administrative Agent, at
account number NYAO-DI-900-9-000002 maintained by the Administrative Agent with
Chase at the Principal Office, in immediately available funds, for account of
the Company. The amount so received by the Administrative Agent shall, subject
to the terms and conditions of this Agreement, be made available to the Company
by depositing the same, in immediately available funds, in an account of the
Company maintained with Chase at the Principal Office designated by the Company.
(b) At any time after the making of any Swingline Loan by the
Swingline Bank until the unpaid principal amount of such Swingline Loan shall
have been paid in full, the Swingline Bank may, and the Company hereby
irrevocably authorizes and empowers (which power is coupled with an interest)
the Swingline Bank to, deliver, on behalf of the Company, to the Administrative
Agent under Section 2.02(a) hereof a notice of borrowing of Syndicated Loans
that are Base Rate Loans in an amount equal to the then unpaid principal amount
of such Swingline Loan. In the event that the power of the Swingline Bank to
give such notice of borrowing on behalf of the Company is terminated for any
reason whatsoever (including, without limitation, a termination resulting from
the occurrence of an event specified in clause (f) or (g) of Section 9 hereof
with respect to the Company), or the Swingline Bank is otherwise precluded for
any reason whatsoever from giving a notice of borrowing on behalf of the Company
as provided in the preceding sentence, each Revolving Credit Bank shall, upon
notice from the Swingline Bank, promptly purchase from the Swingline Bank a
participation in (or, if and to the extent specified by the Swingline Bank, an
assignment of) such Swingline Loan in the amount of the Base Rate Loan it would
have been obligated to make pursuant to such notice of borrowing. Each Revolving
Credit Bank shall, not later than 4:00 p.m. New York time on the Business Day on
which such notice is given (if such notice is given by 2:15 p.m. New York time)
or 9:00 a.m. New York time on the next succeeding Business Day (if such notice
is given after 2:15 p.m., but before 5:00 p.m., New York time), make available
the amount of the Base Rate Loan to be made by it (or the amount of the
participation or assignment to be purchased by it, as the case may be) to the
Administrative Agent at the account specified in Section 2.02(a) hereof and the
amount so received by the Administrative Agent shall promptly be made available
to the Swingline Bank by remitting the same, in immediately available funds, to
the Swingline Bank. Promptly following its receipt of any payment in respect of
such Swingline Loan, the Swingline Bank shall pay to each Revolving Credit Bank
that has acquired a participation in such Swingline Loan such Revolving Credit
Bank's proportionate share of such payment.
Credit Agreement
----------------
- 32 -
Anything in this Agreement to the contrary notwithstanding (including, without
limitation, in Section 6.02 hereof), the obligation of each Revolving Credit
Bank to make its Base Rate Loan (or purchase its participation in or assignment
of such Swingline Loan, as the case may be) pursuant to this Section 2.02(b) is
unconditional under any and all circumstances whatsoever and shall not be
subject to set-off, counterclaim or defense to payment that such Revolving
Credit Bank may have or have had against the Company, the Administrative Agent,
the Swingline Bank or any other Bank and, without limiting any of the foregoing,
shall be unconditional irrespective of (i) the occurrence of any Default, (ii)
the financial condition of the Company, any Subsidiary, the Administrative
Agent, the Swingline Bank or any other Bank or (iii) the termination or
cancellation of the Revolving Credit Commitments; provided that the Revolving
--------
Credit Banks shall not be obligated to make such Base Rate Loans (or to purchase
participations or direct interests in the Swingline Loan) (i) if, at the time of
the making of such Swingline Loan, the Swingline Bank had actual knowledge that
a Default had occurred and was continuing or (ii) to the extent (and only to the
extent) that such Base Rate Loans, together with all other Revolving Credit
Loans, Competitive Bid Loans and Swingline Loans (other than the Swingline Loan
to be repaid with the proceeds of such Base Rate Loans) then outstanding, would
exceed the then aggregate amount of the Revolving Credit Commitments. The
Company agrees that any Revolving Credit Bank so purchasing a participation (or
assignment) in such Swingline Loan may exercise all rights of set-off, bankers'
lien, counterclaim or similar rights with respect to such participation as fully
as if such Revolving Credit Bank were a direct holder of a Swingline Loan in the
amount of such participation.
2.03 Competitive Bid Loans.
---------------------
(a) In addition to borrowings of Revolving Loans, at any time and
from time to time during an Investment Grade Rating Period and prior to the
Revolving Commitment Termination Date the Company may, as set forth in this
Section 2.03, request the Banks to make offers to make Competitive Bid Loans to
the Company. The Banks may, but shall have no obligation to, make such offers
and the Company may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.03. Competitive Bid Loans may be LIBOR
Bid Loans or Set Rate Loans (each a "Type" of Competitive Bid Loan), provided
--------
that:
(i) there may be no more than fifteen different Interest Periods for
both Syndicated Loans and Competitive Bid Loans outstanding at the same
time (for which purpose Interest Periods described in different lettered
clauses of the definition of the term "Interest Period" shall be deemed
Credit Agreement
----------------
- 33 -
to be different Interest Periods even if they are coterminous); and
(ii) the aggregate principal amount of all Competitive Bid Loans,
together with the aggregate principal amount of all Revolving Loans and all
Swingline Loans, at any one time outstanding shall not exceed the aggregate
amount of the Revolving Credit Commitments at such time.
(b) When the Company wishes to request offers to make Competitive Bid
Loans, it shall give the Administrative Agent (which shall promptly notify the
Banks) notice (a "Competitive Bid Quote Request") so as to be received no later
-----------------------------
than 11:00 a.m. New York time on (x) the fourth Business Day prior to the date
of borrowing proposed therein, in the case of a LIBOR Auction or (y) the
Business Day next preceding the date of borrowing proposed therein, in the case
of a Set Rate Auction (or, in any such case, such other time and date as the
Company and the Administrative Agent, with the consent of the Majority Banks,
may agree with notice by the Administrative Agent to the Banks of such
agreement), specifying:
(i) the proposed date of such borrowing (a "Competitive Bid
---------------
Borrowing"), which shall be a Business Day;
---------
(ii) the aggregate amount of such Competitive Bid Borrowing, which
shall be $10,000,000 or an integral multiple of $5,000,000 in excess
thereof, but shall not cause the limits specified in Section 2.03(a) hereof
to be violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Competitive Bid Quotes requested are to set forth a
Competitive Bid Margin or a Competitive Bid Rate;
(v) if the Competitive Bid Quotes requested are to set forth a
Competitive Bid Rate, the date on which the Competitive Bid Quotes are to
be submitted (which may not be earlier than the Business Day next
succeeding the date of the Competitive Bid Quote Request) if it is before
the proposed date of borrowing (the date on which such Competitive Bid
Quotes are to be submitted is called the "Quotation Date" and if no such
--------------
date is specified, the Quotation Date is the proposed date of borrowing);
and
(vi) the aggregate principal amount of all Competitive Bid Loans and
Revolving Loans outstanding at the date of such Competitive Bid Quote
Request.
Credit Agreement
----------------
- 34 -
The Company may request offers to make Competitive Bid Loans with both
Competitive Bid Margins and Competitive Bid Rates, and with different Interest
Periods, in a single request; provided that (aa) the request for each separate
--------
Type and maturity shall be deemed to be a separate Competitive Bid Quote Request
for a separate Competitive Bid Borrowing and (bb) the Company may not make more
than 5 Competitive Bid Quote Requests at the same time. Except as otherwise
provided in the preceding sentence, no Competitive Bid Quote Request shall be
given within five Business Days (or such other number of days as the Company and
the Administrative Agent, with the consent of the Majority Banks, may agree with
notice by the Administrative Agent to the Banks of such agreement) of any other
Competitive Bid Quote Request.
(c) (i) Each Bank may submit a Competitive Bid Quote containing an
offer to make a Competitive Bid Loan in response to any Competitive Bid Quote
Request; provided that, if the Company's request under Section 2.03(b) hereof
--------
specified more than one Interest Period and/or Type of Competitive Bid Loan,
such Bank may make a single submission containing a separate offer for each such
Interest Period and for each such Type and each such separate offer shall be
deemed to be a separate Competitive Bid Quote. Each Competitive Bid Quote must
be submitted to the Administrative Agent not later than (x) 2:00 p.m. New York
time on the fourth Business Day prior to the proposed date of borrowing, in the
case of a LIBOR Auction or (y) 10:00 a.m. New York time on the Quotation Date,
in the case of a Set Rate Auction (or, in any such case, such other time and
date as the Company and the Administrative Agent, with the consent of the
Majority Banks, may agree with notice by the Administrative Agent to the Banks
of such agreement); provided that any Competitive Bid Quote submitted by Chase
--------
(or its Applicable Lending Office) may be submitted, and may only be submitted,
if Chase (or such Applicable Lending Office) notifies the Company of the terms
of the offer contained therein not later than (x) 1:00 p.m. New York time on the
fourth Business Day prior to the proposed date of borrowing, in the case of a
LIBOR Auction or (y) 9:45 a.m. New York time on the Quotation Date, in the case
of a Set Rate Auction. Subject to Sections 5.02(b), 5.03, 6.02 and 9 hereof, any
Competitive Bid Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Company.
(ii) Each Competitive Bid Quote shall specify:
(A) the proposed date of borrowing and the Interest Period
therefor;
Credit Agreement
----------------
- 35 -
(B) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (x) may be
greater than or less than the unused Revolving Credit Commitment of
the quoting Bank, (y) shall be $10,000,000 or an integral multiple of
$5,000,000 in excess thereof and (z) may not exceed the principal
amount of the Competitive Bid Borrowing for which offers were
requested;
(C) in the case of a LIBOR Auction, the margin above or below
the applicable LIBO Rate (the "Competitive Bid Margin") offered for
----------------------
each such Competitive Bid Loan, expressed as a percentage (rounded
upwards, if necessary, to the nearest 1/10,000th of 1%) to be added to
or subtracted from the applicable LIBO Rate;
(D) in the case of a Set Rate Auction, the rate of interest per
annum (rounded upwards, if necessary, to the nearest 1/10,000th of 1%)
(the "Competitive Bid Rate") offered for each such Competitive Bid
--------------------
Loan; and
(E) the identity of the quoting Bank.
No Competitive Bid Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth in the
applicable Competitive Bid Quote Request and, in particular, no Competitive Bid
Quote may be conditioned upon acceptance by the Company of all (or some
specified minimum) of the principal amount of the Competitive Bid Loan for which
such Competitive Bid Quote is being made; provided that the submission by any
--------
Bank containing more than one Competitive Bid Quote may be conditioned on offers
contained in such submission not being accepted to the extent that it would
result in such Bank making Competitive Bid Loans pursuant thereto in excess of a
specified aggregate amount (the "Competitive Bid Loan Limit").
--------------------------
(d) The Administrative Agent shall (x) in the case of a Set Rate
Auction, as promptly as practicable after the Competitive Bid Quote is submitted
(but in any event not later than 10:15 a.m. New York time) or (y) in the case of
a LIBOR Auction, by 4:00 p.m. New York time on the day a Competitive Bid Quote
is submitted, notify the Company of the terms (i) of any Competitive Bid Quote
submitted by a Bank that is in accordance with Section 2.03(c) hereof and (ii)
of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent
with a previous Competitive Bid Quote submitted by such Bank with respect to the
same Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote
shall be disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote is submitted solely to correct a manifest error in such
Credit Agreement
----------------
- 36 -
former Competitive Bid Quote. The Administrative Agent's notice to the Company
shall specify (A) the aggregate principal amount of the Competitive Bid
Borrowing for which offers have been received and (B) the respective principal
amounts and Competitive Bid Margins or Competitive Bid Rates, as the case may
be, so offered by each Bank (identifying the Bank that made each Competitive Bid
Quote).
(e) Not later than (x) 11:00 a.m. New York time on the third Business
Day prior to the proposed date of borrowing, in the case of a LIBOR Auction or
(y) 11:00 a.m. New York time on the Quotation Date, in the case of a Set Rate
Auction (or, in any such case, such other time and date as the Company and the
Administrative Agent, with the consent of the Majority Banks, may agree with
notice by the Administrative Agent to the Banks of such agreement), the Company
shall notify the Administrative Agent of its acceptance or nonacceptance of the
offers so notified to it pursuant to Section 2.03(d) hereof (and the failure by
the Company to notify the Administrative Agent of its acceptance of an offer as
provided above shall be deemed to be nonacceptance by the Company of such
offer), and the Administrative Agent shall promptly notify each affected Bank.
In the case of acceptance, such notice by the Administrative Agent shall specify
the aggregate principal amount of offers for each Interest Period that are
accepted and the lowest and highest Competitive Bid Margins and Competitive Bid
Rates that were accepted for each Interest Period. The Company may accept any
Competitive Bid Quote in whole or in part (provided that any Competitive Bid
--------
Quote accepted in part from any Bank shall be $10,000,000 or an integral
multiple of $5,000,000 in excess thereof); provided that:
--------
(i) the aggregate principal amount of each Competitive Bid Borrowing
may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing
shall be $10,000,000 or an integral multiple of $5,000,000 in excess
thereof, but shall not cause the limits specified in Section 2.03(a) hereof
to be violated;
(iii) acceptance of offers may only be made in ascending order of
Competitive Bid Margins or Competitive Bid Rates, as the case may be, in
each case beginning with the lowest rates so offered;
(iv) the Company may not accept any offer if the Administrative Agent
has advised the Company that such offer fails to comply with Section
2.03(c)(ii) hereof or otherwise fails to comply with the requirements of
this Agreement (including, without limitation, Section 2.03(a) hereof); and
Credit Agreement
----------------
- 37 -
(v) the aggregate principal amount of each Competitive Bid Borrowing
from any Bank may not exceed any applicable Competitive Bid Loan Limit of
such Bank.
If offers are made by two or more Banks with the same Competitive Bid Margins or
Competitive Bid Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which offers are permitted to be accepted
for the related Interest Period, the principal amount of Competitive Bid Loans
in respect of which such offers are accepted shall be allocated by the Company
among such Banks as nearly as possible (in integral multiples of $5,000,000) in
proportion to the aggregate principal amount of such offers. Determinations by
the Company of the amounts of Competitive Bid Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose offer to make any Competitive Bid Loan has been
accepted shall, not later than 1:00 p.m. New York time on the date specified for
the making of such Loan, make the amount of such Loan available to the
Administrative Agent at the Principal Office in immediately available funds. The
amount so received by the Administrative Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Company on such date by
depositing the same, in immediately available funds, in an account of the
Company maintained with Chase at the Principal Office designated by the Company.
(g) Except for the purpose and to the extent expressly stated in
Section 2.04(a) hereof, the amount of any Competitive Bid Loan made by any Bank
shall not constitute a utilization of such Bank's Revolving Credit Commitment.
2.04 Changes of Commitments.
----------------------
(a) Voluntary Reduction of Commitments. The Company shall have the
----------------------------------
right to terminate or reduce the unused amount of the Commitments (solely for
which purpose the amount of any Competitive Bid Borrowing and outstanding
Swingline Loans shall be deemed to be a pro rata (based upon Commitments)
utilization of each Revolving Credit Bank's Revolving Credit Commitment) at any
time or from time to time upon not less than three Business Days' prior notice
to the Administrative Agent (which shall promptly notify the Banks) of each such
termination or reduction, which notice shall specify the effective date thereof
and the amount of any such reduction (which shall be $25,000,000 or an integral
multiple of $5,000,000 in excess thereof) and shall be irrevocable and effective
only upon receipt by the Administrative Agent; provided that (i) the aggregate
--------
amount of the Revolving Credit Commitments shall at no time be less than the
amount of the Swingline Commitment as then in effect and (ii) the aggregate
Credit Agreement
----------------
- 38 -
amount of the Revolving Credit Commitments shall at no time be less than the
aggregate unpaid principal amount of all Revolving Loans, Swingline Loans and
Competitive Bid Loans.
(b) Termination of Commitments. The Revolving Credit Commitments and
--------------------------
the Swingline Commitment shall terminate on the Revolving Commitment Termination
Date and the Series I Term Loan Commitments and the Series II Term Loan
Commitments shall terminate on the Term Loan Commitment Termination Date.
(c) Reduction of Swingline Commitment. The Company shall have the
---------------------------------
right to terminate or reduce the unused amount of the Swingline Commitment at
any time or from time to time upon not less than three Business Days' prior
notice to the Administrative Agent (which shall promptly notify the Swingline
Bank and each Bank) of each such termination or reduction, which notice shall
specify the effective date thereof and the amount of any such reduction (which
shall be at least $25,000,000 and in integral multiples of $5,000,000) and shall
be irrevocable and effective only upon receipt by the Administrative Agent;
provided that the Swingline Commitment shall at no time be less than the
--------
aggregate unpaid principal amount of the Swingline Loans.
(d) No Reinstatement. The Commitments and the Swingline Commitment
----------------
once terminated or reduced may not be reinstated.
(e) Bank Replacement. If any Bank requests compensation pursuant to
----------------
Section 5.01 hereof (other than compensation requested under Section 5.01(e)
hereof), the Company may, so long as no Default shall have occurred and be
continuing, require that such Bank transfer all or a portion of its rights and
obligations (including, without limitation, its Loans and Commitments) as a
"Bank" under this Agreement and such Bank's Notes to one or more banks (such
bank or banks being herein referred to as the "Replacement Bank(s)") identified
-------------------
by the Company in a notice (the "Replacement Notice") to the Administrative
------------------
Agent (which shall promptly notify the affected Bank) specifying the date on
which such transfer is to occur and whether all or a portion of said rights and
obligations are proposed to be transferred, which notice shall be given not less
than 10 Business Days prior to the date on which such transfer is to occur;
provided that no such transfer shall be made unless (i) the Administrative Agent
--------
shall have consented to the identity of the Replacement Bank(s), which consent
shall not be unreasonably withheld or delayed, (ii) the aggregate amount of
compensation that would be requested by the Replacement Bank(s) under Section
5.01 hereof would be less than the aggregate amount of compensation requested by
the affected Bank in respect of the rights and obligations proposed to be
transferred, (iii) the Commitments proposed to be transferred to the Replacement
Credit Agreement
----------------
- 39 -
Bank(s), together with the aggregate amount of the Commitments transferred
pursuant to this Section 2.04(e) during the preceding period of 12 months shall
not exceed 17.5% of the aggregate amount of the Commitments as in effect on the
date of the proposed transfer and (iv) the amount of the Commitments proposed to
be transferred to any Replacement Bank shall be at least $10,000,000 (or, if
less than $10,000,000, the entire Commitments of the affected Bank). On the date
of any transfer permitted under this Section 2.04(e), (x) the affected Bank
shall sell, assign and transfer to the Replacement Bank(s), and the Replacement
Bank(s) shall acquire and assume from the affected Bank, all (or the lesser
portion specified in the Replacement Notice) of the rights and obligations of
the affected Bank as a "Bank" under this Agreement and under the affected Bank's
Notes (collectively, the "Transferred Interest") and (y) the Company and/or the
--------------------
Replacement Bank(s) shall pay to the affected Bank an amount equal to all
principal, interest, fees and other amounts then owing under this Agreement and
the affected Bank's Notes in respect of the Transferred Interest (including,
without limitation, any amounts which would be payable in respect of the
Transferred Interest under Sections 5.01 and 5.05 hereof as if the affected
Bank's Loans were being prepaid in full on such date), whereupon the Replacement
Bank(s) shall become "Bank(s)" for all purposes of this Agreement having all the
rights and obligations, including, without limitation, Commitment(s), under this
Agreement of "Bank(s)" holding the Transferred Interest, and the obligations of
the affected Bank in respect of the Transferred Interest (including, if such
Bank is the Swingline Bank, its Swingline Commitment) shall terminate (provided
--------
that the obligations of the Company under Sections 5.01, 5.05 and 11.03 hereof
to the affected Bank in respect of the Transferred Interest shall survive such
transfer as provided in Section 11.07 hereof). If the Commitments of any Bank
that is a Reference Bank (or whose Applicable Lending Office is a Reference
Bank, as the case may be) shall terminate (other than pursuant to Section 9
hereof), such Reference Bank shall thereupon cease to be a Reference Bank and,
if as a result of the foregoing, there shall be only two Reference Banks
remaining, then the Administrative Agent (after consultation with the Company)
shall, by notice to the Company and the Banks, designate another Bank as a
Reference Bank.
Credit Agreement
----------------
- 40 -
2.05 Fees.
----
(a) The Company shall pay to the Administrative Agent for account of
each Term Loan Bank a commitment fee on the daily average unused amount of such
Bank's Term Loan Commitment for the period from and including the Restatement
Date to but excluding the earlier of the date such Term Loan Commitment is
terminated or the Term Loan Commitment Termination Date at a rate equal to
0.375% per annum. Accrued commitment fee shall be payable on the earlier of the
date the Term Loan Commitments are terminated or the Term Loan Commitment
Termination Date.
(b) The Company shall pay to the Administrative Agent for account of
each Revolving Credit Bank a facility fee on the daily average amount of such
Bank's Revolving Credit Commitment (whether or not utilized) for the period from
and including the Restatement Date to but excluding the earlier of the date such
Commitment is terminated or the Revolving Commitment Termination Date at a rate
per annum equal to the Applicable Facility Fee Rate. Accrued facility fee shall
be payable on each Quarterly Date and on the earlier of the date the Revolving
Credit Commitments are terminated or the Revolving Commitment Termination Date.
(c) The Company shall pay to the Administrative Agent for the
Administrative Agent's account a fee of $3,000 for each Competitive Bid Quote
Request (for which purpose multiple Competitive Bid Quote Requests contained in
a single request shall be deemed to be a single Competitive Bid Quote Request
notwithstanding the provisions of the second sentence of Section 2.03(b)
hereof), such fees to be payable in arrears on the last Business Day of each
month.
2.06 Lending Offices. The Loans of each Type made by each Bank shall
---------------
be made and maintained at such Bank's Applicable Lending Office for Loans of
such Type. The Swingline Loans shall be made and maintained at the Applicable
Lending Office of the Swingline Bank for Swingline Loans.
2.07 Several Obligations; Remedies Independent. The failure of any
-----------------------------------------
Bank to make any Loan to be made by it on the date specified therefor shall not
relieve any other Bank of its obligation to make any Loan to be made by such
other Bank on such date, but no Bank shall be responsible for the failure of any
other Bank to make a Loan to be made by such other Bank. The amounts payable by
the Company at any time hereunder and under the Notes to each Bank shall be a
separate and independent debt and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes, and it shall not
be necessary for any other Bank or the Administrative Agent to
Credit Agreement
----------------
- 41 -
consent to, or be joined as an additional party in, any proceedings for such
purposes.
2.08 Notes.
-----
(a) The Syndicated Loans made by each Bank shall be evidenced (i) if
Series I Term Loans, by a single promissory note of the Company in substantially
the form of Exhibit A-1 hereto, dated the Restatement Date, payable to such Bank
in a principal amount equal to its Series I Term Loan Commitment and otherwise
duly completed (each a "Series I Term Note" and collectively the "Series I Term
------------------ -------------
Notes"), (ii) if Series II Term Loans, by a single promissory note of the
-----
Company in substantially the form of Exhibit A-2 hereto, dated the Restatement
Date, payable to such Bank in a principal amount equal to its Series II Term
Loan Commitment and otherwise duly completed (each a "Series II Term Note",
-------------------
collectively the "Series II Term Notes" and, together with the Series I Term
--------------------
Notes, the "Term Notes") and (iii) if Revolving Loans, by a single promissory
----------
note of the Company substantially in the form of Exhibit A-3 hereto, dated the
Restatement Date, payable to such Bank in a principal amount equal to its
Revolving Credit Commitment as originally in effect and otherwise duly completed
(each a "Revolving Note" and collectively the "Revolving Notes"). The date,
-------------- ---------------
amount, Type and interest rate of each Series I Term Loan, each Series II Term
Loan and each Revolving Loan made by each Bank, and all payments made on account
of the principal thereof, shall be recorded by such Bank on its books and, prior
to any transfer of the Note evidencing the same, endorsed by such Bank on the
schedule attached to such Note or any continuation thereof; provided that the
--------
failure by such Bank to make such recordation or endorsement shall not relieve
the Company of any of its obligations hereunder or under such Note.
(b) The Competitive Bid Loans made by each Bank shall be evidenced by
a single promissory note of the Company in substantially the form of Exhibit A-4
hereto, dated the Restatement Date, payable to such Bank and otherwise duly
completed. The date, amount, Type, interest rate and maturity date of each
Competitive Bid Loan made by any Bank, and all payments made on account of the
principal thereof, shall be recorded by such Bank on its books and, prior to any
transfer of such Note held by it, endorsed by such Bank on the schedule attached
to such Note or any continuation thereof; provided that the failure by such Bank
--------
to make such recordation or endorsement shall not relieve the Company of any of
its obligations hereunder or under such Note.
(c) The Swingline Loans made by the Swingline Bank shall be evidenced
by a single promissory note of the Company in substantially the form of Exhibit
A-5 hereto, dated the
Credit Agreement
----------------
- 42 -
Restatement Date, payable to the Swingline Bank in a principal amount equal to
the amount of its Swingline Commitment as originally in effect and otherwise
duly completed. The date and amount of each Swingline Loan and each payment made
on account of the principal thereof, shall be recorded by the Swingline Bank on
its books and, prior to any transfer of its Swingline Note, endorsed by the
Swingline Bank on the schedule attached to the Swingline Note or any
continuation thereof; provided that the failure by the Swingline Bank to make
any such recordation or endorsement shall not affect any of the obligations of
the Company hereunder or under the Swingline Note.
(d) No Note may be subdivided, by exchange for promissory notes of
lesser denominations or otherwise, except in connection with a permitted
assignment of all or any portion of such Bank's Commitments, Loans and Notes
pursuant to Sections 11.06(b) and 11.06(f) hereof. The Swingline Note may not be
subdivided, by exchange for promissory notes of lesser denominations or
otherwise, except in connection with an assignment permitted pursuant to Section
11.06(c) hereof of all or any portion of the Swingline Bank's Swingline
Commitment, the Swingline Loans and the Swingline Note.
2.09 Optional Prepayments and Conversions or Continuations of Loans.
--------------------------------------------------------------
Subject to Sections 4.06, 4.07 and 5.05 hereof, the Company shall have the right
to prepay Syndicated Loans or Swingline Loans, or to Convert Syndicated Loans of
one Type into Syndicated Loans of another Type or Continue Syndicated Loans of
one Type as Syndicated Loans of the same Type, at any time or from time to time,
provided that: (a) the Company shall give the Administrative Agent notice of
--------
each such prepayment, Conversion or Continuation as provided in Section 4.07
hereof (and, upon the date specified in any such notice of prepayment, the
amount to be prepaid shall become due and payable hereunder); (b) Eurodollar
Loans may be prepaid or Converted only on the last day of an Interest Period for
such Loans; (c) Syndicated Loans may not be prepaid at any time that any
Swingline Loan is outstanding and (d) prepayments of the Term Loans shall be
applied first, to the then-remaining installments of the Series II Term Loans in
-----
the direct order of their maturities and second, to the aggregate outstanding
------
principal amount of the Series I Term Loans. No Competitive Bid Loan may be
prepaid without the consent of the Bank holding such Competitive Bid Loan
(provided that this sentence shall not affect the Company's obligation to pay
--------
Loans pursuant to Section 9 hereof). Notwithstanding the foregoing, and without
limiting the rights and remedies of the Banks under Section 9 hereof, in the
event that any Event of Default specified in Section 9(a) or 9(b)(i) hereof
shall have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Banks shall) suspend the right of the Company to Convert
any Syndicated Loan into a Eurodollar Loan, or
Credit Agreement
----------------
- 43 -
to Continue any Syndicated Loan as a Eurodollar Loan, in which event all
Syndicated Loans shall be Converted into (on the last day(s) of the respective
Interest Periods therefor) or Continued as Base Rate Loans.
2.10 Mandatory Prepayments.
---------------------
(a) Equity Issuance. Upon any Equity Issuance during a Mandatory
---------------
Prepayment Period after the Amendment Effective Date, the Company shall prepay
the Term Loans in an aggregate amount equal to 100% of the Net Available
Proceeds thereof, such prepayment to be effected in the manner and to the extent
specified in paragraph (f) of this Section 2.10.
(b) Excess Cash Flow. If on the last day of any fiscal year of the
----------------
Company ending after the Amendment Effective Date a Mandatory Prepayment Period
is in effect, then not later than the date 105 days after the end of such fiscal
year, the Company shall prepay the Term Loans in an aggregate amount equal to
the excess of (A) 50% of Excess Cash Flow for such fiscal year over (B) the
aggregate amount of voluntary prepayments of Term Loans made during such fiscal
year after the Term Loan Commitment Termination Date pursuant to Section 2.09
hereof, such prepayment to be effected in each case in the manner and to the
extent specified in paragraph (f) of this Section 2.10; provided that the
--------
Company shall not be required to make such prepayment if such excess amount is
less than $10,000,000.
(c) Sale of Assets. Without limiting the obligation of the Company
--------------
to obtain the consent of the Majority Banks pursuant to Section 8.09 hereof to
any Disposition not otherwise permitted under Section 8.09 hereof, in the event
of any Disposition made after the Amendment Effective Date while a Mandatory
Prepayment Period is in effect (or, if after giving effect to any such
Disposition, a Mandatory Prepayment Period would exist), (i) no later than five
Business Days prior to the occurrence of such Disposition resulting in Net
Available Proceeds of $5,000,000 or more, the Company will deliver to the Banks
a statement, certified by a senior financial officer of the Company, in form and
detail satisfactory to the Administrative Agent, of the aggregate amount of the
Net Available Proceeds of such Disposition and (ii) the Company shall prepay the
Term Loans in an aggregate amount equal to 100% of the Net Available Proceeds
received from such Disposition (except that Net Available Proceeds consisting of
Permitted Buyer Indebtedness need not be applied to such prepayment until the
earlier of any payment or Disposition of such Permitted Buyer Indebtedness and
then only to the extent of such payment or the Net Available Proceeds of such
Disposition), such prepayment to be effected in each case in the manner and to
the extent specified in paragraph (f) of this Section 2.10.
Credit Agreement
----------------
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(d) Funded Debt Incurrence. Upon the creation, incurrence or
----------------------
issuance by the Company or any of the Subsidiaries after the Amendment Effective
Date of any Funded Debt (other than (i) the Loans, (ii) Working Capital Credit
Lines, (iii) Capital Lease Obligations and (iv) Indebtedness secured by Liens
permitted by Section 8.10(f) hereof) during a Mandatory Prepayment Period (or,
if after giving effect to any such creation, incurrence or issuance of Funded
Debt, a Mandatory Prepayment Period would exist), the Company shall prepay the
Term Loans in an aggregate amount equal to 100% of all cash received by the
Company and the Subsidiaries in respect of such Funded Debt (net of expenses
incurred by the Company and the Subsidiaries in connection therewith), such
prepayment to be effected in the manner and to the extent specified in paragraph
(f) of this Section 2.10.
(e) Purchase Price Adjustments. During a Mandatory Prepayment
--------------------------
Period, the Company shall prepay the Term Loans in an aggregate amount equal to
any purchase price adjustments received by the Company from the Seller under
Section 2.3 of the Asset Purchase Agreement, such prepayment to be effected in
the manner and to the extent specified in paragraph (f) of this Section 2.10;
provided that the Company shall not be required to make such prepayment if such
--------
adjustments aggregate less than $10,000,000.
(f) Application.
-----------
(i) Prepayments of Term Loans described in paragraphs (a), (c), (d)
and (e) above shall be applied first to the aggregate outstanding principal
amount of the Series I Term Loans and second to the then-remaining
------
installments of the Series II Term Loans ratably.
(ii) Prepayments of Term Loans described in paragraph (b) above shall
be applied first to the then-remaining installments of the Series II Term
-----
Loans in the direct order of their maturities and second to the aggregate
------
outstanding principal amount of the Series I Term Loans.
(iii) If any such prepayment would obligate the Company to make a
payment under Section 5.05 hereof, such prepayment may, so long as no
Default shall have occurred and be continuing, be delayed until the earlier
of (i) the last day of any then current Interest Period and (ii) 30 days
after such prepayment would otherwise have to have been made.
2.11 Swingline Loans.
---------------
Credit Agreement
----------------
- 45 -
(a) The Swingline Bank hereby agrees, on the terms and conditions
of this Agreement, to make loans ("Swingline Loans") to the Company in Dollars
---------------
during the period from and including the Amendment Effective Date to but not
including the Revolving Commitment Termination Date in an aggregate amount at
any one time outstanding up to but not exceeding its Swingline Commitment;
provided that the aggregate unpaid principal amount of all Swingline Loans,
--------
together with the aggregate unpaid principal amount of all Revolving Loans and
all Competitive Bid Loans, at any one time outstanding may not exceed the
aggregate amount of the Revolving Credit Commitments. Subject to the terms of
this Agreement, the Company may borrow, repay and reborrow the amount of the
Swingline Commitment by means of Base Rate Loans; provided that, unless the
Swingline Bank shall otherwise agree, (i) Swingline Loans may not be borrowed
more than ten (10) times per year and (ii) no Swingline Loans may be outstanding
on the last day of any calendar quarter.
(b) The Company shall, not later than 2:00 p.m. New York time on
the date on which the Company proposes to borrow a Swingline Loan, give the
Administrative Agent (which shall promptly notify the Swingline Bank and the
Banks) notice of such borrowing (a "Swingline Borrowing Notice"), which notice
--------------------------
shall be irrevocable and effective only upon receipt by the Administrative Agent
and shall specify the principal amount of the Swingline Loan to be borrowed
(which shall be at least $5,000,000 and in integral multiples of $1,000,000).
Not later than 3:00 p.m. New York time, on the date specified in each Swingline
Borrowing Notice hereunder, the Swingline Bank shall, subject to the terms of
this Agreement, make the amount of the Swingline Loan to be made by it on such
date available to the Administrative Agent in account number NYAO-DI-900-9-
000002 maintained by the Administrative Agent with Chase at the Principal Office
in immediately available funds, for account of the Company. The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Company on such date by depositing
the same, in immediately available funds, in an account of the Company
maintained with Chase at the Principal Office designated by the Company.
Section 3. Payments of Principal and Interest.
----------------------------------
3.01 Repayment of Loans.
------------------
(a) The Company hereby promises to pay to the Administrative Agent
for account of each Bank the entire outstanding principal amount of such Bank's
Revolving Loans, and each Revolving Loan shall mature, on the Revolving
Commitment Termination Date.
Credit Agreement
----------------
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(b) The Company hereby promises to pay to the Administrative Agent
for account of each Bank that makes any Competitive Bid Loan the principal
amount of such Competitive Bid Loan, and such Competitive Bid Loan shall mature,
on the last day of the Interest Period for such Competitive Bid Loan.
(c) The Company hereby promises to pay to the Administrative Agent
for account of each Bank the entire outstanding principal amount of such Bank's
Series I Term Loans, and each Series I Term Loan shall mature, on the Series I
Term Loan Final Maturity Date.
(d) The Company hereby promises to pay to the Administrative Agent
for account of the Banks the aggregate principal amount of the Series II Term
Loans in 24 equal consecutive quarterly installments payable on the Series II
Principal Payment Dates.
(e) The Company hereby promises to pay to the Administrative Agent
for account of the Swingline Bank the principal of each Swingline Loan at or
prior to, and such Swingline Loan shall mature at, 1:00 p.m. New York time on
the fifth Business Day immediately following the day on which such Swingline
Loan was made (the "Swingline Maturity Date").
-----------------------
3.02 Interest.
--------
(a) Syndicated Loans and Competitive Bid Loans. The Company hereby
------------------------------------------
promises to pay to the Administrative Agent for account of each Bank interest on
the unpaid principal amount of each Loan made by such Bank for the period
commencing on the date of such Loan to but excluding the date such Loan shall be
paid in full, at the following rates per annum:
(i) during such period as such Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) plus the Applicable Margin (if any);
(ii) during such period as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Fixed Base Rate for such Loan for
such Interest Period plus the Applicable Margin;
(iii) if such Loan is a LIBOR Bid Loan, the LIBO Rate for such Loan
for the Interest Period therefor plus (or minus) the Competitive Bid Margin
quoted by the Bank making such Loan in accordance with Section 2.03 hereof;
and
(iv) if such Loan is a Set Rate Loan, the Competitive Bid Rate for
such Loan for the Interest Period therefor
Credit Agreement
----------------
- 47 -
quoted by the Bank making such Loan in accordance with Section 2.03 hereof.
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for account of each Bank interest at the applicable Post-
Default Rate on any principal of any Loan made by such Bank, and on any other
amount payable by the Company hereunder or under any Note held by such Bank to
or for account of such Bank, which shall not be paid in full when due (whether
at stated maturity, by acceleration or otherwise), for the period commencing on
the due date thereof until the same is paid in full. Accrued interest on each
Loan shall be payable (i) in the case of a Base Rate Loan, quarterly on the
Quarterly Dates, (ii) in the case of a Eurodollar Loan or a Competitive Bid
Loan, on the last day of each Interest Period therefor and, if such Interest
Period is longer than 90 days (in the case of a Set Rate Loan) or three months
(in the case of a Eurodollar Loan or a LIBOR Bid Loan), at 90-day or three-month
intervals, respectively, following the first day of such Interest Period, and
(iii) in the case of any Loan, upon the payment or prepayment thereof or the
Conversion of such Loan to a Loan of another Type (but only on the principal
amount so paid, prepaid or Converted), except that interest payable at the Post-
Default Rate shall be payable from time to time on demand. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Administrative Agent shall notify the Banks to which such interest is
payable and the Company thereof.
(b) Swingline Loans. The Company hereby promises to pay to the
---------------
Administrative Agent for account of the Swingline Bank interest on the unpaid
principal amount of each Swingline Loan for the period from and including the
day such Swingline Loan is made to but excluding the Swingline Maturity Date
applicable thereto at the Base Rate (as in effect from time to time) plus the
Applicable Margin (if any) for Revolving Loans that are Base Rate Loans, which
interest shall be payable on such Swingline Maturity Date. The Company hereby
promises to pay to the Administrative Agent for account of the Swingline Bank
interest at the applicable Post-Default Rate on any principal of or interest on
any Swingline Loan that shall not be paid in full when due for the period from
and including the Swingline Maturity Date thereof to but excluding the date the
same is paid in full. Interest payable at the Post-Default Rate shall be payable
from time to time on demand of the Swingline Bank.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
-----------------------------------------------
4.01 Payments. Except to the extent otherwise provided herein, all
--------
payments of principal, interest and other amounts to be made by the Company
under this Agreement and the
Credit Agreement
----------------
- 48 -
Notes shall be made in Dollars, in immediately available funds, to the
Administrative Agent at account number NYAO-DI-900-9-000002 maintained by the
Administrative Agent with Chase at the Principal Office, not later than 1:00
p.m. New York time on the date on which such payment shall become due (each such
payment made after such time on such due date to be deemed to have been made on
the next succeeding Business Day). Any Bank or the Swingline Bank for whose
account any such payment is to be made, may (but shall not be obligated to)
debit the amount of any such payment which is not made by such time to any
ordinary deposit account of the Company with such Bank or the Swingline Bank, as
the case may be (with notice to the Company and the Administrative Agent
provided that such Bank's failure to give such notice shall not affect the
--------
validity of any such debit). The Company shall, at the time of making each
payment under this Agreement or any Note for account of any Bank or the
Swingline Bank, specify to the Administrative Agent the Loans or other amounts
payable by the Company hereunder to which such payment is to be applied (and in
the event that it fails to so specify, or if an Event of Default has occurred
and is continuing, the Administrative Agent shall distribute such payment first
-----
to the Swingline Bank (to the extent any amounts are then due and payable to the
Swingline Bank on account of the Swingline Loans) and then to the Banks pro rata
----
(based on the amounts then due and payable hereunder to the Banks) and each Bank
or the Swingline Bank, as the case may be, may apply the portion of such payment
received by it to such amounts then due and payable hereunder to such Bank or
the Swingline Bank, as the case may be, as such Bank or the Swingline Bank, as
the case may be, may determine). Each payment received by the Administrative
Agent under this Agreement or any Note for account of a Bank or the Swingline
Bank shall be paid promptly to such Bank or the Swingline Bank, as the case may
be, in immediately available funds, and, in the case of principal or interest on
any Loan, for account of such Bank's or the Swingline Bank's, as the case may
be, Applicable Lending Office for such Loan. If the due date of any payment
under this Agreement or any Note would otherwise fall on a day which is not a
Business Day such date shall be extended to the next succeeding Business Day,
and interest shall be payable for any principal so extended for the period of
such extension.
4.02 Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein: (a) each borrowing of Syndicated Loans of a particular Class from the
Banks under Section 2.01 hereof shall be made from the Banks, each payment of
Fees under Sections 2.05(a) and (b) hereof shall be made for account of the
Banks, and each termination or reduction of the amount of the Commitments under
Section 2.04 hereof shall be applied to the respective Commitments of the Banks,
pro rata according to the amounts of their respective Commitments; (b) the
making, Conversion and Continuation of Revolving Loans, Series I Term Loans and
Series II Term Loans of a particular Type (other than Conversions provided for
by Section 5.04 hereof) shall be made pro rata among the relevant Banks
according to the amounts of their respective Revolving Credit, Series I Term
Loan and Series II Term Loan Commitments (in the case of making of Loans) or
their respective Revolving Credit, Series I Term
Credit Agreement
----------------
- 49 -
Loans and Series II Term Loans of a particular Type (other than Conversions
provided for by Section 5.04 hereof) shall be made pro rata among the relevant
Banks according to the amounts of their respective Revolving Credit, Series I
Term Loan and Series II Term Loan Commitments (in the case of making of Loans)
or their respective Revolving Credit, Series I Term Loan and Series II Term
Loans (in the case of Conversions and Continuations of Loans); (c) except as
otherwise provided in Section 5.04 hereof, Eurodollar Loans having the same
Interest Period shall be allocated pro rata among the Banks according to the
amounts of their respective Commitments; (d) each payment or prepayment of
principal of Syndicated Loans of any Class and Type by the Company shall be made
for account of the Banks pro rata in accordance with the respective unpaid
principal amounts of the Syndicated Loans of such Class and Type held by the
Banks; and (e) each payment of interest on Syndicated Loans of any Class and
Type by the Company shall be made for account of the Banks pro rata in
accordance with the amounts of interest on Syndicated Loans of such Class and
Type due and payable to the respective Banks.
4.03 Computations. Interest on Competitive Bid Loans and Eurodollar
------------
Loans, and Fees payable pursuant to Section 2.05 hereof, respectively, shall be
computed on the basis of a year of 360 days and actual days elapsed (including
the first day but excluding the last day) occurring in the period for which
payable, and interest on Base Rate Loans shall be computed on the basis of a
year of 365 or 366 days, as the case may be (or, for each day the interest on
Base Rate Loans is calculated by reference to the Federal Funds Rate, on a year
of 360 days), and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which payable.
4.04 Non-Receipt of Funds by the Administrative Agent. Unless the
------------------------------------------------
Administrative Agent shall have been notified by a Bank or the Company (each, a
"Payor") prior to the date on which the Payor is to make payment to the
-----
Administrative Agent of (in the case of a Bank) the proceeds of a Loan to be
made by it hereunder or (in the case of the Company) a payment to the
Administrative Agent for account of one or more of the Banks hereunder (such
payment being herein called the "Required Payment"), which notice shall be
----------------
effective upon receipt, that it does not intend to make the Required Payment to
the Administrative Agent, the Administrative Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s)
on such date; and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day
Credit Agreement
----------------
- 50 -
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Rate for such day.
4.05 Sharing of Payments, Etc. The Company agrees that, in addition
------------------------
to (and without limitation of) any right of set-off, bankers' lien or
counterclaim a Bank or the Swingline Bank may otherwise have, each Bank and the
Swingline Bank shall be entitled, at its option, to offset balances held by it
or any of its affiliates at any of its respective offices for account of the
Company, in Dollars or in any other currency, against any principal of or
interest on any of such Bank's or the Swingline Bank's Loans, or any other
amount payable to such Bank or the Swingline Bank (as the case may be)
hereunder, which is not paid when due (regardless of whether such balances are
then due to the Company), in which case it shall promptly notify the Company and
the Administrative Agent thereof, provided that such Bank's or the Swingline
--------
Bank's failure to give such notice shall not affect the validity thereof. If any
Bank shall obtain payment of any principal of or interest on any Syndicated Loan
of any Class owing to it by the Company, or in respect of its interest in any
Swingline Loan, through the exercise of any right of set-off, bankers' lien or
counterclaim or similar right or otherwise, and, as a result of such payment,
such Bank shall have received a greater percentage of the principal of or
interest on its Syndicated Loans of such Class, or in respect of its interest in
any Swingline Loan, then due hereunder by the Company than the percentage
received by any other Bank, it shall promptly purchase from such other Banks
participations in (or, if and to the extent specified by such Bank, direct
interests in) the Syndicated Loans of such Class or Swingline Loans,
respectively, owing to such other Banks (or in interest due thereon, as the case
may be) in such amounts, and make such other adjustments from time to time as
shall be equitable, to the end that all the Banks shall share the benefit of
such excess payment (net of any expenses which may be incurred by such Bank in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal and/or interest on the Syndicated Loans of such Class or
Swingline Loans, respectively, owing to each of the Banks. To such end all the
Banks shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. The Company agrees that any Bank so purchasing such a participation
(or direct interest) in the Syndicated Loans made by other Banks (or in interest
due thereon, as the case may be) may exercise all rights of set-off, bankers'
lien, counterclaim or similar rights with respect to such participation (or
direct interest) as fully as if such Bank were a direct holder of Loans in the
amount of such participation. Nothing contained herein shall require any Bank to
exercise any such right of set-off, banker's lien or
Credit Agreement
----------------
- 51 -
counterclaim or shall affect the right of any Bank to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Company. If under any applicable bankruptcy, insolvency or
other similar law, any Bank receives a secured claim in lieu of a set-off to
which this Section 4.05 applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Banks entitled under this Section 4.05 to share in the
benefits of any recovery on such secured claim.
4.06 Minimum Amounts. Except for mandatory prepayments pursuant to
---------------
Section 2.10 hereof and Conversions or prepayments made pursuant to Section 5.04
hereof, each borrowing, Conversion and partial prepayment of principal of Base
Rate Loans shall be in an aggregate amount at least equal to $10,000,000 or in
integral multiples of $1,000,000 in excess thereof and each borrowing,
Conversion and partial prepayment of principal of Eurodollar Loans shall be in
an aggregate amount at least equal to $25,000,000 or in integral multiples of
$5,000,000 in excess thereof (borrowings, Conversions and prepayments of or into
Loans of different Types or, in the case of Eurodollar Loans, having different
Interest Periods at the same time hereunder to be deemed separate borrowings,
Conversions and prepayments for purposes of the foregoing, one for each Type or
Interest Period). Anything in this Agreement to the contrary notwithstanding,
the aggregate principal amount of Eurodollar Loans having the same Interest
Period shall be in an amount at least equal to $25,000,000 or in integral
multiples of $1,000,000 in excess thereof and, if any Eurodollar Loans would
otherwise be in a lesser principal amount for any period, such Loans shall be
Base Rate Loans during such period.
4.07 Certain Notices. Except as otherwise provided in Section 2.03
---------------
hereof with respect to Competitive Bid Loans, notices by the Company to the
Administrative Agent of terminations or reductions of the Commitments, of
borrowings, Conversions, Continuations and optional prepayments of Loans and of
Classes of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the
Administrative Agent not later than 11:00 a.m. New York time on the number of
Business Days prior to the date of the relevant termination, reduction,
Conversion, Continuation or prepayment or the first day of such Interest Period
specified below:
Credit Agreement
----------------
- 52 -
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of, or Conversions
into, Base Rate Loans 1
Borrowing or optional prepayment of,
Conversions into, Continuations as, or
duration of Interest Period
for, Eurodollar Loans 3
provided that, with respect to the Syndicated Loans made on the Amendment
Effective Date, notice of the borrowing of, and the duration of Interest Periods
for, Eurodollar Loans may be given prior to the Amendment Effective Date so long
as the Company shall have indemnified the Banks on terms comparable to those
contained in Section 5.05 hereof.
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.06 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid (and, in the case of a Conversion, the Type of
Loan to result from such Conversion) and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Administrative Agent shall promptly
notify the Banks of the contents of each such notice. In the event that the
Company fails to select the Type of Loan, or the duration of any Interest Period
for any Eurodollar Loan, within the time period and otherwise as provided in
this Section 4.07, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
Credit Agreement
----------------
- 53 -
Section 5. Yield Protection and Illegality.
-------------------------------
5.01 Additional Costs.
----------------
(a) The Company shall pay directly to each Bank from time to time
such amounts as such Bank may determine to be necessary to compensate it for any
costs which such Bank determines are attributable to its making or maintaining
of any Fixed Rate Loans or its obligation to make any Fixed Rate Loans
hereunder, or any reduction in any amount receivable by such Bank hereunder in
respect of any of such Loans or such obligation (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"),
----------------
resulting from any Regulatory Change which: (i) changes the basis of taxation of
any amounts payable to such Bank under this Agreement or its Notes in respect of
any of such Loans (other than taxes imposed on the overall net income of such
Bank or of its Applicable Lending Office for any of such Loans by the
jurisdiction in which such Bank has its principal office or such Applicable
Lending Office); or (ii) imposes or modifies any reserve, special deposit,
minimum capital, capital ratio or similar requirements relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Bank (including any of such Loans or any deposits referred
to in the definition of "Fixed Base Rate" in Section 1.01 hereof), or any
Commitment of such Bank; or (iii) imposes any other condition affecting this
Agreement or its Notes (or any of such extensions of credit or liabilities) or
Commitment. Each Bank will designate a different Applicable Lending Office for
the Loans of such Bank affected by such event if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Bank, be disadvantageous to such Bank, provided that such Bank
--------
shall have no obligation to so designate an Applicable Lending Office located in
the United States. If any Bank requests compensation from the Company under this
Section 5.01(a), the Company may, by notice to such Bank (with a copy to the
Administrative Agent), suspend the obligation of such Bank to make additional or
Continue Loans of the Type with respect to which such compensation is requested,
or to Convert Loans of any Type into Loans of such Type, until the Regulatory
Change giving rise to such request ceases to be in effect (in which case the
provisions of Section 5.04 hereof shall be applicable).
(b) Without limiting the effect of the provisions of Section 5.01(a)
hereof, in the event that, by reason of any Regulatory Change, any Bank either
(i) incurs Additional Costs based on or measured by the excess above a specified
level of the amount of a category of deposits or other liabilities of such Bank
which includes deposits by reference to which the interest rate on Eurodollar
Loans is determined as provided in this
Credit Agreement
----------------
- 54 -
Agreement or a category of extensions of credit or other assets of such Bank
which includes Eurodollar Loans or (ii) becomes subject to restrictions on the
amount of such a category of liabilities or assets which it may hold, then, if
such Bank so elects by notice to the Company (with a copy to the Administrative
Agent), the obligation of such Bank to make additional or Continue, or to
Convert Loans of any other Type into, Loans of such Type hereunder shall be
suspended until such Regulatory Change ceases to be in effect (in which case the
provisions of Section 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Company shall pay directly to each
Bank from time to time on request such amounts as such Bank may determine to be
necessary to compensate such Bank or any corporation controlling such Bank for
any costs which such Bank determines are attributable to the maintenance by such
Bank (or any Applicable Lending Office), pursuant to any law or regulation or
any interpretation, directive or request (whether or not having the force of
law) of any court or governmental or monetary authority (i) following any
Regulatory Change or (ii) implementing any risk-based capital guideline or other
requirement issued after the Restatement Date by any government or governmental
authority implementing at the national level the Basle Accord (including,
without limitation, the Final Risk-Based Capital Guidelines), of capital in
respect of its Commitment (such compensation to include, without limitation, an
amount equal to any reduction of the rate of return on assets or equity of such
Bank (or any Applicable Lending Office) or any corporation controlling such Bank
to a level below that which such Bank (or any Applicable Lending Office) or such
corporation could have achieved but for such law, regulation, interpretation,
directive or request). Each Bank will notify the Company that it is entitled to
compensation pursuant to this Section 5.01(c) as promptly as practicable after
it determines to request such compensation.
(d) Each Bank will furnish the Company with a certificate setting
forth the basis, calculation and amount of each request by such Bank for
compensation under paragraph (a), (c) or (e) of this Section 5.01.
Notwithstanding anything in this Section 5.01 to the contrary, compensation with
respect to any event entitling any Bank to compensation under paragraph (a) or
(c) of this Section 5.01 shall be payable to such Bank only for costs incurred
by such Bank from and after the date 30 days after the date that such Bank
furnishes to the Company notice of its intention to request the payment of
compensation with respect to such event. Determinations and allocations by any
Bank for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to Section 5.01(a) or (b) hereof, or of the effect of capital
maintained pursuant to Section 5.01(c) hereof,
Credit Agreement
----------------
- 55 -
on its costs or rate of return of maintaining Loans or its obligation to make
Loans, or on amounts receivable by it in respect of Loans, and of the amounts
required to compensate such Bank under this Section 5.01, shall be conclusive,
provided that such determinations and allocations are made on a reasonable
--------
basis.
(e) Without limiting the effect of the foregoing, the Company shall
pay to each Bank on the last day of each Interest Period (or, if later, on the
date of the notice provided for below) so long as such Bank is maintaining
reserves against "Eurocurrency liabilities" under Regulation D (or, unless the
provisions of paragraph (b) above are applicable, so long as such Bank is, by
reason of any Regulatory Change, maintaining reserves against any other category
of liabilities which includes deposits by reference to which the interest rate
on Eurodollar Loans is determined as provided in this Agreement or against any
category of extensions of credit or other assets of such Bank which includes any
Eurodollar Loans) an additional amount (determined by such Bank and notified to
the Company through the Administrative Agent within 45 days after the last day
of such Interest Period) equal to the product of the following for each
Eurodollar Loan for each day during such Interest Period:
(i) the principal amount of such Eurodollar Loan outstanding on such
day; and
(ii) the remainder of (x) a fraction the numerator of which is the
rate (expressed as a decimal) at which interest accrues on such Eurodollar
Loan for such Interest Period as provided in this Agreement (less the
Applicable Margin) and the denominator of which is one minus the effective
-----
rate (expressed as a decimal) at which such reserve requirements are
imposed on such Bank on such day minus (y) such numerator; and
-----
(iii) 1/360.
5.02 Limitation on Types of Loans. Anything herein to the contrary
----------------------------
notwithstanding, if, on or prior to the determination of any Fixed Base Rate for
any Interest Period:
(a) the Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of "Fixed Base Rate" in Section 1.01 hereof
are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for any Type of
Fixed Rate Loans as provided herein; or
Credit Agreement
----------------
- 56 -
(b) the Majority Banks determine (or any Bank that has outstanding a
Competitive Bid Quote with respect to a LIBOR Bid Loan determines), which
determination shall be conclusive, and notify (or notifies, as the case may
be) the Administrative Agent that the relevant rates of interest referred
to in the definition of "Fixed Base Rate" in Section 1.01 hereof upon the
basis of which the rate of interest for Eurodollar Loans (or LIBOR Bid
Loans, as the case may be) for such Interest Period is to be determined are
not likely adequately to cover the cost to such Banks (or to such quoting
Bank) of making or maintaining such Type of Loans;
then the Administrative Agent shall give the Company and each Bank prompt notice
thereof, and so long as such condition remains in effect, the Banks (or such
quoting Bank) shall be under no obligation to make additional Loans of such
Type.
5.03 Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain Eurodollar Loans and
LIBOR Bid Loans hereunder, then such Bank shall promptly notify the Company
thereof (with a copy to the Administrative Agent) and such Bank's obligation to
make Eurodollar Loans shall be suspended until such time as such Bank may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
hereof shall be applicable), and such Bank shall no longer be obligated to make
any LIBOR Bid Loan that it has offered to make.
5.04 Base Rate Loans Pursuant to Sections 5.01 and 5.03. If the
--------------------------------------------------
obligation of any Bank to make Fixed Rate Loans shall be suspended pursuant to
Section 5.01 or 5.03 hereof (Loans of such Type being herein called "Affected
--------
Loans" and such Type being herein called the "Affected Type"), all Loans (other
----- -------------
than Competitive Bid Loans) which would otherwise be made by such Bank as Loans
of the Affected Type shall be made instead as Base Rate Loans (and, if an event
referred to in Section 5.01(b) or 5.03 hereof has occurred and such Bank so
requests by notice to the Company with a copy to the Administrative Agent, all
Affected Loans of such Bank then outstanding shall be automatically Converted
into Base Rate Loans on the last day(s) of the then current Interest Period(s)
for Affected Loans (or, in the case of a Conversion required by Section 5.01(b)
or 5.03 hereof, on such earlier date as such Bank may specify to the Company
with a copy to the Administrative Agent)) and, unless and until such Bank gives
notice as provided below that the circumstances specified in Section 5.01 or
5.03 hereof that gave rise to such Conversion no longer exist:
Credit Agreement
----------------
- 57 -
(a) to the extent that such Bank's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Bank's Affected Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Bank
as Loans of the Affected Type shall be made or Continued instead as Base
Rate Loans, and all Loans of such Bank that would otherwise be Converted
into Loans of the Affected Type shall be Converted instead into (or shall
remain as) Base Rate Loans.
If such Bank gives notice to the Company with a copy to the Administrative Agent
that the circumstances specified in Section 5.01 or 5.03 hereof that gave rise
to the Conversion of such Bank's Affected Loans pursuant to this Section 5.04 no
longer exist (which such Bank agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other Banks
are outstanding, such Bank's Base Rate Loans shall be automatically Converted,
on the first day(s) of the next succeeding Interest Period(s) for such
outstanding Loans of the Affected Type, to the extent necessary so that, after
giving effect thereto, all Loans held by the Banks holding Loans of the Affected
Type and by such Bank are held pro rata (as to principal amounts, Types and
Interest Periods) in accordance with their respective Commitments.
5.05 Compensation. The Company shall pay to the Administrative Agent
------------
for account of each Bank, upon the request of such Bank through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Bank) to compensate it for any loss, cost or expense
which such Bank determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a
Fixed Rate Loan or a Set Rate Loan for any reason (including, without
limitation, under Section 5.04 hereof or by reason of the acceleration of
the Loans pursuant to Section 9 hereof) on a date other than the last day
of the Interest Period for such Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Fixed Rate Loan or a Set Rate
Loan (with respect to which, in the case of a Competitive Bid Loan, the
Company has accepted a Competitive Bid Quote) from such Bank on the date
for such borrowing specified in the relevant notice of borrowing given
pursuant to Section 2.02 or 2.03(b) hereof.
Credit Agreement
----------------
- 58 -
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which otherwise would have accrued on the principal amount so paid or Converted
or not borrowed for the period from the date of such payment, Conversion or
failure to borrow to the last day of the Interest Period for such Loan (or, in
the case of a failure to borrow, the Interest Period for such Loan which would
have commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein over (ii) the interest component
of the amount such Bank would have bid in the London interbank market (if such
Loan is a Eurodollar Loan or a LIBOR Bid Loan) or the United States certificate
of deposit market for issuance at face value of certificates of deposit (if such
Loan is a Set Rate Loan) for Dollar deposits in amounts comparable to such
principal amount and with maturities comparable to such period (as reasonably
determined by such Bank).
Section 6. Conditions Precedent.
--------------------
6.01 Conditions to Effectiveness. The effectiveness of the amendment
---------------------------
and restatement of the Existing Credit Agreement provided for hereby is subject
to the receipt by the Administrative Agent of the following documents (with, in
the case of paragraphs (d) and (e) below, sufficient signed copies for each Bank
and the Administrative Agent) and the occurrence of the following events, as the
case may be, each of which shall be satisfactory to the Administrative Agent
(and to the extent specified below, to the Majority Banks or to each Bank) in
form and substance:
(a) Corporate Documents. Certified copies of the Company's charter
-------------------
and by-laws and of all corporate action taken by the Company approving each
Credit Document and the borrowings by the Company hereunder (including,
without limitation, a certificate setting forth the resolutions of the
Company's Board of Directors adopted in respect of the transactions
contemplated thereby).
(b) Incumbency Certificate. A certificate of the Secretary of the
----------------------
Company, dated the Amendment Effective Date, in respect of the incumbency
and specimen signature of each of the officers (i) who is authorized to
sign the Credit Documents on the Company's behalf and (ii) who will, until
replaced by another officer or officers duly authorized for that purpose,
act as the Company's representative for the purposes of signing documents
and giving notices and other communications in connection with the Credit
Documents and the transactions contemplated thereby. The Administrative
Agent and each of the Banks may
Credit Agreement
----------------
- 59 -
conclusively rely on such certificate until it receives notice in writing
from the Company to the contrary.
(c) Officer's Certificate. A certificate of a senior officer of the
---------------------
Company, dated the Amendment Effective Date, to the effect set forth in
clauses (a) and (b) of Section 6.02 hereof (after giving effect to the
consummation of the Acquisition).
(d) Opinions. (i) An opinion of Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
--------
LLP, special California counsel to the Company, dated the Amendment
Effective Date, substantially in the form of Exhibit B-1 hereto and (ii) an
opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Corporate Vice President and General
Counsel of the Company, dated the Amendment Effective Date, substantially
in the form of Exhibit B-2 hereto (and the Company hereby instructs each
such counsel to deliver such opinions to the Banks and the Administrative
Agent).
(e) Opinion. An opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special
-------
New York counsel to the Banks and the Swingline Bank, dated the Amendment
Effective Date, substantially in the form of Exhibit C hereto.
(f) Notes. The Notes, duly completed and executed and delivered.
-----
(g) CIBC Receivables Sale Agreements. A true and complete copy of
--------------------------------
the CIBC Receivables Sale Agreements as in effect on the Amendment
Effective Date.
(h) Asset Purchase Agreement. (i) A true and complete copy of the
------------------------
Asset Purchase Agreement (which shall include copies of all amendments,
schedules, exhibits and other attachments thereto and contain terms and
conditions in form and substance satisfactory to the Managing Banks in
their reasonable determination), together with true and complete copies of
each document, certificate and opinion referred to in or delivered in
connection with such Asset Purchase Agreement, and (ii) a certificate of a
senior officer of the Company, dated the Amendment Effective Date, to the
effect that (x) the Asset Purchase Agreement has been duly executed and
delivered by each of the parties thereto and is in full force and effect on
the Amendment Effective Date and (y) the Asset Purchase Agreement has not
been amended or otherwise modified, or executed and delivered in a form
other than the form heretofore delivered to the Administrative Agent prior
to the Restatement Date.
Credit Agreement
----------------
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(i) Consummation of the Acquisition. A certificate of a senior
-------------------------------
officer of the Company, dated the Amendment Effective Date, to the effect
that (i) the Acquisition has been (or will concurrently be) consummated in
accordance with the Asset Purchase Agreement, (ii) the representations and
warranties contained in the Asset Purchase Agreement (including, without
limitation, in all certificates and other writings, if any, delivered
pursuant thereto) by the Company are true and correct on and as of the
Amendment Effective Date as if made on and as of the Amendment Effective
Date (or if such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date), and (iii) all
conditions to the consummation of the Acquisition as set forth in the Asset
Purchase Agreement have been (or will concurrently be) fulfilled or waived
by the parties thereto (which waiver, in the case of any waiver by the
Company, shall be given only with the consent of the Managing Banks, and
which conditions, in the case of conditions to be fulfilled to the
satisfaction of the Company, shall be fulfilled to the satisfaction of the
Managing Banks).
(j) Terms of Acquisition. A certificate of a senior officer of the
--------------------
Company, dated the Amendment Effective Date to the effect that (i) the cash
portion of the purchase price paid by the Company for the Acquisition does
not exceed $3,000,000,000 plus or minus the aggregate purchase price
adjustment as provided in the Asset Purchase Agreement, (ii) assuming that
the Acquisition had been consummated on September 30, 1995, the amount of
pension liabilities that would have been assumed by the Company in
connection with the Acquisition (excluding those arising under the Seller's
"Executive Plan" up to $33,000,000) would not have exceeded $478,000,000
and the amount of other post-retirement benefits liabilities that would
have been assumed by the Company in connection with the Acquisition would
not have exceeded $110,000,000, in each case as reflected on the balance
sheet of the Acquired Business as at September 30, 1995 (subject to
adjustments at the closing of the Acquisition and to the restatement
thereof on the books of the Company) and (iii) the fees and expenses
relating to the Acquisition will not exceed $135,000,000.
(k) Approvals and Consents. A certificate of a senior officer of the
----------------------
Company, dated the Amendment Effective Date, to the effect that all
necessary governmental and third party filings, licenses, permits, consents
and approvals in connection with the Acquisition and the transactions
contemplated hereby have been obtained by the Company and are in full force
and effect on the Amendment Effective Date, except that consents of the
Government are required
Credit Agreement
----------------
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with respect to the assignment to the Company of contracts between the
Acquired Business and the Government, which consents the Company has no
reason to believe will not be obtained in due course.
(l) Payment of Fees and Expenses. Evidence that (i) all principal of
----------------------------
and interest on the loans made by the Existing Banks under the Existing
Credit Agreement shall have been (or will concurrently be) paid in full and
(ii) all fees and expenses payable to the Existing Banks and the
Administrative Agent under the Existing Credit Agreement accrued to the
Amendment Effective Date and unpaid and all costs, fees and expenses, and
all other compensation contemplated by the Credit Documents and by the Fee
Letter dated January 2, 1996 between the Company and the Agents and the Co-
Arrangers identified therein (including, without limitation, legal fees and
expenses) shall have been (or will concurrently be) paid by the Company to
the extent due.
(m) Financial Information. Not less than five Business Days prior to
---------------------
the Restatement Date, true, correct and complete copies of the financial
statements and opinions referred to in clauses (a) and (b) of Section 7.02
hereof.
(n) Litigation. Except as set forth on Schedule III hereto, no
----------
litigation by any entity (private or governmental) shall be pending or
threatened against the Company or the Acquired Business (a) with respect to
this Agreement or any other Credit Document or (b) which the Majority Banks
shall reasonably determine would be likely to have a Material Adverse
Effect.
(o) Solvency Certificate. A certificate of a senior financial
--------------------
officer of the Company, dated the Amendment Effective Date, to the effect,
to the best of his or her actual knowledge, set forth in clause (d) of
Section 7.02 hereof.
(p) Miscellaneous. Such other documents as the Administrative Agent,
-------------
any Bank, the Swingline Bank or special New York counsel to the Banks and
the Swingline Bank may reasonably request.
The Administrative Agent shall promptly notify each Bank of the occurrence of
the Amendment Effective Date.
6.02 Initial and Subsequent Loans. The obligation of any Bank to
----------------------------
make any Loan (including, without limitation, any Competitive Bid Loan and its
initial Syndicated Loan) and the obligation of the Swingline Bank to make any
Swingline Loan (including its initial Swingline Loan) to the Company upon the
Credit Agreement
----------------
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occasion of each borrowing hereunder is subject to the further conditions
precedent that, as of the date of such Loan and after giving effect thereto:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company in Section
7 hereof shall be true in all material respects on and as of the date of
the making of such Loan with the same force and effect as if made on and as
of such date.
Each notice of borrowing by the Company hereunder and each Swingline Borrowing
Notice shall constitute a certification by the Company to the effect set forth
in the preceding sentence (both as of the date of such notice and, unless the
Company otherwise notifies the Administrative Agent prior to the date of such
borrowing, as of the date of such borrowing).
Section 7. Representations and Warranties.
------------------------------
7.01 Corporate Existence. Each of the Company and the Material
-------------------
Subsidiaries: (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; (b) has all
requisite corporate power, and has all material governmental licenses,
authorizations, consents and approvals, necessary to own its assets and carry on
its business as now being conducted; and (c) is qualified to do business and is
in good standing in all jurisdictions in which the failure to so qualify would
have a Material Adverse Effect.
7.02 Certain Financial Information.
-----------------------------
(a) Company Financial Condition. The consolidated statement of
---------------------------
financial position of the Company and the Subsidiaries as at December 31, 1995
and the related consolidated statements of operations, changes in shareholders'
equity and cash flows of the Company and the Subsidiaries for the fiscal year
ended on said date, with the opinion thereon of Deloitte & Touche LLP,
heretofore furnished to each of the Banks, are complete and present fairly, in
all material respects, the consolidated financial condition of the Company and
the Subsidiaries as at said date and the consolidated results of their
operations for such fiscal year, all in accordance with generally accepted
accounting principles and practices applied on a consistent basis. Neither the
Company nor any of the Subsidiaries had on said dates any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any
Credit Agreement
----------------
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any unfavorable commitments, except as referred to or reflected or provided for
in said statements of financial position as at said dates. Except as expressly
disclosed in writing to the Banks prior to the Restatement Date, since December
31, 1995, there has been no material adverse change in the consolidated
financial condition or operations, or the prospects or business taken as a
whole, of the Company and the Subsidiaries from that set forth in said financial
statements as at said date.
(b) Acquired Business Financial Condition. The Company has
-------------------------------------
heretofore furnished to the Banks the combined statement of financial position
of the Acquired Business as at December 31, 1994 and as at December 31, 1995 and
the respective related combined statements of earnings, cash flows and changes
in invested equity of the Acquired Business for the period ended on such dates
and for the period ended on December 31, 1993, with the opinion thereon of Price
Waterhouse LLP. As of the Restatement Date, except as expressly disclosed in
writing to the Banks prior to the Restatement Date, since December 31, 1995,
there has been no material adverse change in the combined financial condition or
operations, or the prospects or business taken as a whole, of the Acquired
Business from that set forth in said financial statements as at December 31,
1995.
(c) Projections. The Company has heretofore furnished to each of the
-----------
Banks projected consolidated financial statements of the Company and the
Subsidiaries, on an annual basis for the fiscal years of the Company ending in
each of 1996, 1997, 1998, 1999, 2000, 2001 and 2002. Such projected financial
statements set forth projected consolidated balance sheets of the Company and
the Subsidiaries and projected consolidated statements of operations, changes in
shareholders' equity and cash flows of the Company and the Subsidiaries (after
giving effect to the Acquisition and the related financing thereof, assuming the
consummation of the Acquisition on March 31, 1996) for the respective fiscal
periods covered thereby, subject to the caveats and explanations set forth in
the Information Memorandum. Such projected financial statements are based upon
assumptions believed by the Company to be reasonable as of the Restatement Date,
which assumptions are expressly disclosed therein.
(d) Solvency, Etc. On and as of the Amendment Effective Date on a
--------------
pro forma basis after giving effect to the consummation of the Acquisition and
all liabilities assumed and incurred and to be assumed and incurred by the
Company in connection therewith, (x) the sum of the assets of the Company, at a
fair valuation, will exceed its debts, (y) the Company will not have assumed and
incurred nor intended to, or believes that it will not, assume and incur debts
beyond its ability to pay such debts as such debts mature and (z) the Company
will have sufficient capital with which to conduct its business. For
Credit Agreement
----------------
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purposes of this Section 7.02(d), "liability" means any liability on a claim,
and "claim" means (i) right to payment whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured; or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
7.03 Litigation. There are no legal or arbitral proceedings or any
----------
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Company) threatened against the Company or
any Material Subsidiary which, if adversely determined, would result, in the
opinion of the Company, in any Material Adverse Effect except as heretofore
disclosed to the Banks in the Company's Annual Report on Form 10-K for the
calendar year ended December 31, 1995, copies of which have been furnished to
the Banks or in Schedule III hereto.
7.04 No Breach. Except as expressly disclosed in writing to the
---------
Banks on or before the Restatement Date, none of the execution and delivery of
any of the Credit Documents, the borrowing of the Loans hereunder, the
consummation of the Acquisition and the other transactions herein contemplated
and compliance with the terms and provisions hereof will conflict with or result
in a breach of, or require any consent under, the charter or by-laws of the
Company, or any applicable law or regulation, or any order, writ, injunction or
decree of any court or governmental authority or agency, or any agreement or
instrument to which the Company or any Material Subsidiary or the Acquired
Business is a party or by which any of them is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument, or
result in the creation or imposition of any Lien upon any of the revenues or
assets of the Company or any Material Subsidiary or the Acquired Business
pursuant to the terms of any such agreement or instrument.
7.05 Corporate Action. The Company has all necessary corporate power
----------------
and authority to execute, deliver and perform its obligations under the Credit
Documents and to borrow the Loans hereunder; and the execution, delivery and
performance by the Company of the Credit Documents and the borrowing of the
Loans hereunder have been duly authorized by all necessary corporate action on
its part; and this Agreement has been duly and validly executed and delivered by
the Company and constitutes, and each of the other Credit Documents (assuming in
the case of the Notes, execution and delivery thereof for value) will
constitute, legal, valid and binding obligations of the Company, enforceable in
accordance with its terms, except as such enforceability may be
Credit Agreement
----------------
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limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general applicability affecting the enforcement of creditors'
rights and (b) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
7.06 Approvals. Except as expressly disclosed in writing to the
---------
Banks prior to the Restatement Date, no authorizations, approvals, consents or
licenses of, and no filings or registrations with, any governmental or
regulatory authority or agency are necessary to authorize or are necessary in
connection with (i) the execution, delivery and performance of any Credit
Document, (ii) the legality, validity, binding effect or enforceability of any
Credit Document or (iii) for the borrowing of the Loans hereunder.
7.07 Use of Proceeds, Etc. Neither the making of any Loan hereunder,
--------------------
nor the use of the proceeds thereof, will violate the provisions of Regulation
G, U or X of the Board of Governors of the Federal Reserve System and no part of
the proceeds of any Loan will be used to purchase or carry any Margin Stock in
violation of Regulation U or X or to extend credit for the purpose of purchasing
or carrying any Margin Stock in violation of Regulation U or X.
7.08 ERISA. Each of the Company and the ERISA Affiliates has
-----
fulfilled its obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan, is in compliance in all material respects with
the presently applicable provisions of ERISA and the Code and has not incurred
any liability to the PBGC or any Plan or Multiemployer Plan (other than a
liability to make payments or contributions in the ordinary course of business).
No Termination Event has occurred and is continuing. As used in this Agreement,
the term "Termination Event" shall mean any event or condition which might
-----------------
constitute grounds under Section 4042 of ERISA for the termination of, or for
the appointment of a trustee to administer, any Plan and which involves a
liability of the Company to PBGC in excess of $25,000,000.
7.09 Taxes. United States Federal income tax returns of the
-----
Company and the Subsidiaries have been examined and reported on by the Internal
Revenue Service or closed by applicable statutes and satisfied through the
fiscal year of the Company ended December 31, 1985. Each of the Company and the
Subsidiaries has filed all United States Federal and State income tax returns
which, to the knowledge of the officers of the Company, are required to be filed
by it and has paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company or any Subsidiary to the extent that such
Credit Agreement
----------------
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taxes have become due (except as to such taxes which are being contested in good
faith by appropriate proceedings). The charges, accruals and reserves on the
books of the Company and the Subsidiaries in respect of taxes and other
governmental charges are, in the opinion of the Company, adequate. The
California Franchise tax returns of the Company have been examined and reported
on by the California Franchise Tax Board or closed by applicable statutes and
satisfied for all fiscal years prior to, and including, the fiscal year ended
December 31, 1985.
7.10 Funded Debt. As of the Amendment Effective Date, no default
-----------
exists under the provisions of any instrument evidencing Funded Debt or of any
agreement relating thereto.
7.11 Properties. The Company has, and each of the Material
----------
Subsidiaries has, good and marketable title to its respective properties and
assets, including the properties and assets reflected in the balance sheet as at
December 31, 1995 hereinabove described in Section 7.02(a) hereof (other than
Properties disposed of in the ordinary course of business), subject to no Lien
of any kind except Liens permitted by Section 8.10 hereof.
Credit Agreement
----------------
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7.12 Environmental Matters.
---------------------
(a) Except as disclosed in the Company's Annual Report on Form 10-K
for the calendar year ended December 31, 1995 or in the Disclosure Schedule,
neither the Company nor any Subsidiary nor the Acquired Business (i) has
received notice or otherwise obtained knowledge of any claim, demand, action,
event, condition, report or investigation indicating or concerning any potential
or actual liability which would individually or in the aggregate have a Material
Adverse Effect arising in connection with: (1) any non-compliance with or
violation of the requirements of any applicable Federal, state and local
environmental health and safety statutes and regulations or (2) the release or
threatened release of toxic or hazardous waste, substance or constituent, or
other substance into the environment, (ii) has any threatened or actual
liability in connection with the release or threatened release of any toxic or
hazardous waste, substance or constituent, or other substance into the
environment which would individually or in the aggregate have a Material Adverse
Effect, (iii) has received notice or otherwise obtained knowledge of any Federal
or state investigation evaluating whether any remedial action is needed to
respond to a release or threatened release of any toxic or hazardous waste,
substance or constituent or other substance into the environment for which the
Company or any Subsidiary, or the Acquired Business, is or may be liable, which
remedial action would have a Material Adverse Effect or (iv) has received notice
that the Company or any Subsidiary, or the Acquired Business, is or may be
liable to any Person under the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. (S) 9601 et seq.
-- ---
("CERCLA"), or any analogous state law, which liability would have a Material
Adverse Effect.
(b) Each of the Company, each Subsidiary and the Acquired Business is
in compliance with the financial responsibility requirements of all
Environmental Laws, including, without limitation, those contained in 40 C.F.R.,
Parts 264 and 265, Subpart H, and any similar state law requirements.
7.13 True and Complete Disclosure. All factual information (taken
----------------------------
as a whole) furnished on or before the Amendment Effective Date by or on behalf
of the Company or the Subsidiaries in writing to the Administrative Agent or any
Bank (including, without limitation, all factual information contained in the
Information Memorandum) for purposes of or in connection with this Agreement or
any transaction contemplated herein is, and all other such factual information
(taken as a whole) furnished after the Amendment Effective Date by or on behalf
of the Company or the Subsidiaries in writing to any Bank will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete
Credit Agreement
----------------
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by omitting to state any material fact necessary to make such information (taken
as a whole) not misleading at such time in light of the circumstances under
which such information was provided. There is no fact known to the Company which
has, or is reasonably likely to have, a Material Adverse Effect which has not
been disclosed herein or in such other documents, certificates and statements
furnished to the Banks for use in connection with the transactions contemplated
hereby.
7.14 Acquisition. On and as of the Amendment Effective Date, all
-----------
material consents and approvals of, and filings and registrations with, and all
other actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate the Acquisition, or
otherwise required in connection with the Acquisition, will have been obtained,
given, filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained), except that consents of
the Government are required with respect to the assignment to the Company of
contracts between the Acquired Business and the Government, which consents the
Company has no reason to believe will not be obtained in due course. All actions
pursuant to or in furtherance of the Acquisition have been and will be taken in
compliance with all applicable laws.
7.15 Material Subsidiaries. On and as of the Amendment Effective
---------------------
Date on a pro forma basis after giving effect to the consummation of the
Acquisition, set forth in Schedule II hereto are all of the Material
Subsidiaries of the Company.
7.16 Intercompany Debt. On and as of the Restatement Date, the
-----------------
Indebtedness of the Subsidiaries owing to the Company does not exceed
$80,000,000 in the aggregate.
Section 8. Covenants of the Company. The Company agrees that, so
------------------------
long as any of the Commitments or the Swingline Commitment are in effect and
until payment in full of all Loans hereunder, all interest thereon and all other
amounts payable by the Company hereunder:
8.01 Financial Statements. The Company shall deliver to each of the
--------------------
Banks and to the Administrative Agent:
(a) within 105 days after the end of each fiscal year of the Company,
(i) a consolidated statement of financial position of the Company and the
Subsidiaries as at the close of such fiscal year and consolidated
statements of operations, changes in shareholders' equity and cash flows of
the Company and the Subsidiaries for such year, certified by Deloitte &
Touche LLP or by other independent public accountants selected by the
Company and reasonably
Credit Agreement
----------------
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satisfactory to the Administrative Agent and (ii) the Consolidating Financial
Statements for such year;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, (i) an unaudited consolidated
statement of financial position of the Company and the Subsidiaries as at the
end of such quarter and unaudited consolidated statements of operations, changes
in shareholders' equity and cash flows of the Company and the Subsidiaries for
such quarter and for the period from the beginning of the fiscal year to the end
of such quarter, certified by an authorized financial or accounting officer of
the Company and (ii) the Consolidating Financial Statements for such fiscal
quarter;
(c) [Intentionally Omitted];
(d) promptly upon becoming available, copies of all financial
statements, reports, notices, proxy statements and final prospectuses sent by
the Company to shareholders or the SEC or any governmental agency successor to
any or all of the functions of said Commission;
(e) subject to Government restrictions, such other statement or
statements of the position and affairs of the Company and of the Subsidiaries
and the status of their contracts, open accounts and budgets or forecasts, and
other financial information, as may be reasonably requested by the
Administrative Agent;
(f) with each of the audited financial statements required to be
delivered under Section 8.01(a) hereof, a certificate by the independent public
accountants certifying such statements to the effect that they are familiar with
the provisions of this Agreement and that, in making the examination necessary
for their opinion on such financial statements, nothing came to their attention
that caused them to believe that the Company was not in compliance with this
Agreement insofar as it relates to accounting matters or, if the contrary is the
case, specifying the nature of such non-compliance;
(g) with each of the financial statements required to be delivered
under Section 8.01(a) or Section 8.01(b) hereof, a statement by an authorized
financial or accounting officer of the Company to the effect that no Default has
occurred and is continuing, or if any Default has occurred and is continuing,
describing such Default and the action taken or proposed to be taken by the
Company with respect thereto, and a detailed computation, in form and substance
satisfactory to the Administrative Agent, of the financial
Credit Agreement
----------------
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calculations required in Sections 8.06, 8.08, 8.10, 8.12(b), 8.13, 8.14 and
8.15 hereof;
(h) with each of the financial statements required to be delivered
under Section 8.01(a) or 8.01(b) hereof, a certificate of an authorized
financial or accounting officer of the Company, in form and substance
satisfactory to the Administrative Agent, setting forth the Leverage Ratio
as at the last day of the fiscal period of the Company as to which such
financial statements relate;
(i) (x) promptly after each of ▇▇▇▇▇'▇ and S&P first either reaffirms
or announces revised ratings for the Company Senior Long-Term Debt after
the consummation of the Acquisition and (y) thereafter, promptly after (1)
either ▇▇▇▇▇'▇ or S&P first announces or publishes a revised rating for the
Company Senior Long-Term Debt or (2) either ▇▇▇▇▇'▇ or S&P ceases to rate
the Company Senior Long-Term Debt, notice thereof;
(j) promptly after any purchase price adjustments under Section 2.3
of the Asset Purchase Agreement, notice thereof setting forth a calculation
thereof in reasonable detail; and
(k) promptly after the Company knows or has reason to know that any
Default has occurred, a notice of such Default describing the same in
reasonable detail and, together with such notice or as soon thereafter as
is reasonably practicable, a description of the action that the Company has
taken or proposes to take with respect thereto in such detail as the
Company reasonably believes to be appropriate.
8.02 Existence, Payment of Taxes, ERISA, Etc. The Company shall, and
---------------------------------------
shall cause each of the Material Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises (provided that nothing in this
--------
Section 8.02 shall prohibit any transaction expressly permitted under
Section 8.07 or 8.09 hereof);
(b) comply in all material respects with the requirements of all
applicable laws, rules, regulations and orders of governmental or
regulatory authorities if failure to comply with such requirements is
reasonably likely (either individually or in the aggregate) to have a
Material Adverse Effect;
Credit Agreement
----------------
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(c) promptly pay and discharge all taxes, assessments and
governmental charges prior to the date on which material penalties attach
thereto, but only to the extent that such taxes, assessments and charges
shall not be contested in good faith and by appropriate proceedings by the
Company or such Material Subsidiary; and
(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted.
The Company shall furnish to the Administrative Agent the following:
(i) As soon as possible and in any event within 30 days after the
Company knows or has reason to know that any Termination Event (as defined
in Section 7.08 hereof) has occurred, a statement of a senior financial or
accounting officer of the Company describing such Termination Event and the
action, if any, which the Company proposes to take with respect thereto;
(ii) Promptly after receipt thereof by the Company, copies of each
notice received from the PBGC of its intention to terminate any Plan or to
have a trustee appointed to administer any Plan; and
(iii) Promptly after request therefor, such other documents and
information relating to any Plan as the Administrative Agent may reasonably
request from time to time.
8.03 Notice of Litigation. The Company shall promptly give notice
--------------------
in writing to the Administrative Agent (which shall promptly notify the Banks)
of any litigation or proceeding against the Company or any Subsidiary if in the
opinion of the General Counsel of the Company (or any individual acting in such
capacity) such action or proceeding is reasonably likely to have a Material
Adverse Effect. Without limiting the generality of the foregoing, the Company
shall give notice in writing to the Administrative Agent (which will promptly
notify each Bank) of the assertion of any claim by any Person of violation of or
non-compliance with any Environmental Laws against, or with respect to the
activities of, the Company or any Subsidiary, and notice of any alleged
violation of or non-compliance with any Environmental Laws or any permits,
licenses or authorizations under Environmental Laws if in the opinion of the
General Counsel of the Company (or any individual acting in such capacity) such
claim or violation or non-compliance is reasonably likely (either individually
or in the aggregate) to have a Material Adverse Effect.
Credit Agreement
----------------
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8.04 Insurance. The Company shall maintain, and cause each
---------
Subsidiary to maintain, insurance with responsible companies in such amounts and
against such risks as is usually carried by owners of similar businesses and
Property in the same general area in which the Company or such Subsidiary
operates, including reasonable war, comprehensive and commercial risk insurance,
when and if available, subject to such deductibles, retentions and self-
insurance programs as the Company deems appropriate.
8.05 Access to Books and Properties. The Company shall:
------------------------------
(a) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistentwillly applied; and
(b) as may be reasonably requested, give any representatives of the
Banks access, subject to Government restrictions, during normal business
hours to, and permit them to examine, copy or make extracts from, any and
all books, records and documents in the possession of the Company or any
Subsidiary relating to its affairs and to inspect any Properties of the
Company or any Subsidiary.
8.06 Restricted Payments. The Company shall not declare, pay or
-------------------
authorize any Restricted Payment if (a) any such Restricted Payment is not paid
out of Consolidated Net Income Available for Restricted Payments, (b) at the
time of, and immediately after, the making of any such Restricted Payment (or
the declaration of any dividend except a stock dividend) a Default has occurred
or (c) the making of any such Restricted Payment would cause the Leverage Ratio
to exceed the percentage which the Company is required to maintain pursuant to
Section 8.13 hereof.
8.07 Dispositions. The Company shall not, and shall not permit any
------------
Subsidiary to, Dispose of Property having a book value which, together with the
book value of all Property theretofore Disposed of since January 1, 1996, equals
or exceeds 10% of the total book value of all Property of the Company and the
Subsidiaries as at the last day of the Quarterly Period ending on or most
recently ended prior to such Disposition, excluding from the operation of this
clause: (a) Dispositions between the Company and any Subsidiary or between
Subsidiaries in each case for full and adequate consideration, (b) Dispositions
of Investments permitted by Section 8.11(e) hereof, (c) Dispositions of obsolete
or worn-out Property, (d) Dispositions of Property determined by the Chief
Financial Officer of the Company to be no longer useful in the business of
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----------------
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the Company or any Subsidiary and (e) Dispositions of Property for not less than
the fair market value thereof as determined by the Board of Directors of the
Company.
8.08 Guarantees. The Company shall not, and shall not permit any
----------
Subsidiary to, Guarantee any obligation of any Person, or suffer to exist any
Guarantee, except that:
(a) the Company may Guarantee any obligation of any Subsidiary;
(b) any Subsidiary may Guarantee any obligation of the Company or any
other Subsidiary; and
(c) the Company or any Subsidiary may issue a Guarantee of any
obligation of a Person other than the Company or any Subsidiary, or assume
an obligation of any such Person;
provided that (i) the excess (if any) of (x) the aggregate amount of all
--------
obligations referred to in clause (c) above (to the extent said obligations do
not otherwise constitute Funded Debt) over (y) 5% of Consolidated Shareholders'
Equity shall be deemed Funded Debt for the purposes of this Agreement.
8.09 Fundamental Changes and Acquisitions. The Company will not,
------------------------------------
nor will it permit any of the Subsidiaries to, enter into any transaction of
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution).
The Company will not, nor will it permit any of the Subsidiaries to,
acquire any business from or all or any significant part of the Property of, or
all or any significant part of the capital stock of, or be a party to any
acquisition of, any Person.
Notwithstanding the foregoing:
(a) any Subsidiary may be merged or consolidated with or into: (i)
the Company if the Company shall be the continuing or surviving corporation
or (ii) any other Subsidiary; provided that if any such transaction shall
--------
be between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation;
(b) during any Investment Grade Rating Period, the Company or any
Subsidiary may merge or consolidate with any other Person if (i) in the
case of a merger or consolidation of the Company, the Company is the
surviving corporation
Credit Agreement
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and, in any other case, the surviving corporation is a Wholly-Owned
Subsidiary and (ii) after giving effect thereto no Default would exist;
(c) the Company may consummate the Acquisition; and
(d) the Company or any of the Subsidiaries may acquire the business
of, or all or any significant part of the Property of, or all or any
significant part of the capital stock of, or be a party to any acquisition
of, any Person engaged in the same or a related line of business as the
Company (whether directly or through the merger of a Wholly-Owned
Subsidiary with that Person) subject to the following:
(i) so long as the Series I Term Loan remains outstanding, the
aggregate cash consideration paid for all such acquisitions since
the Amendment Effective Date shall not exceed $500,000,000;
(ii) at the time of such acquisition, and after giving effect thereto,
no Default shall exist; and
(iii) the Company would have been in compliance with Sections 8.14
and 8.15 hereof on a pro forma basis if such acquisition had
--- -----
occurred at the beginning of the most recently-ended period of
four consecutive fiscal quarters of the Company, and the Company
shall have delivered a certificate of a senior accounting or
financial officer of the Company to the Administrative Agent
prior to such acquisition demonstrating such compliance;
provided that, during any period which is not an Investment Grade Rating
--------
Period, and notwithstanding the provisions of clause (i) above, the
consideration for any such acquisition shall consist exclusively of Equity
of the Company.
8.10 Limitation on Liens. The Company shall not, and shall not permit
-------------------
any Subsidiary to, create, assume or suffer to exist any Lien on any of its
Property, whether now owned or hereafter acquired, except:
(a) deposits or pledges to secure payments of workers' compensation,
unemployment insurance, old age pensions or other social security, or in
connection with or to secure the performance of bids, tenders, contracts
(other than contracts for the repayment of borrowed money) or leases, or to
secure statutory obligations or surety or appeal bonds, or other pledges or
deposits for purposes of like nature in the ordinary and normal operation
of its business;
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(b) Liens created in favor of the Government or any other contracting
party or customer in connection with advance or progress payments;
(c) mechanics', carriers', workers', repairmen's or other like Liens
arising in the ordinary course of business in respect of obligations which
are not overdue;
(d) Liens for taxes which at the particular time are not due, or
remain payable without penalty, or which are being contested in good faith
and by proper proceedings;
(e) Liens already existing on Property acquired after the Restatement
Date, and securing obligations assumed, in connection with a transaction
permitted by Section 8.09 hereof (and not created in anticipation thereof);
and
(f) purchase money Liens on fixed assets (including trust deeds or
first mortgages) given substantially concurrently with (or within 90 days
after) the acquisition of the fixed assets and Liens existing on such fixed
assets at the time of acquisition thereof, conditional sales agreements or
other title retention agreements with respect to fixed assets hereafter
acquired, and extensions and renewals of any of the same; provided that (i)
--------
the Indebtedness secured by any such Lien shall be reasonably related to
the fair market value of the related asset acquired by the Company or a
Subsidiary, as the case may be, and (ii) no such Lien shall extend to any
Property other than that then being acquired;
provided that the aggregate amount of Indebtedness or obligations (whether or
--------
not assumed by the Company or a Subsidiary) secured by all Liens and agreements
permitted by clauses (e) and (f) of this Section 8.10 shall not at any time
exceed $250,000,000.
8.11 Investments. The Company shall not, and shall not permit any
-----------
Subsidiary to, make any Investment except:
(a) Investments in any Person existing on the Amendment Effective
Date;
(b) Investments in prime quality short-term money market instruments
and direct obligations of the United States and agencies thereof, having a
remaining term to maturity of not more than five years;
(c) Investments made in the ordinary and normal operation of its
business as presently conducted;
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(d) reasonable advances to its subcontractors and suppliers in
anticipation of deliveries;
(e) Investments in any Person or Persons, whether domestic or
foreign, to the extent covered by Guarantees or insurance covering all
political and credit risks issued by the Overseas Private Investment
Corporation or another agency of the United States acceptable to the
Administrative Agent or by an agency of a foreign government which is rated
investment grade by ▇▇▇▇▇'▇ or S&P; and
(f) other Investments in any Person or Persons, whether domestic or
foreign, in amounts which do not exceed in the aggregate at any time
outstanding 5% of the consolidated total assets of the Company and the
Subsidiaries as at the last day of the most recently completed Quarterly
Period, so long as the aggregate amount of Investments in Person(s) that
are not Wholly-Owned Subsidiaries does not as at such day exceed 2% of the
consolidated total assets of the Company and the Subsidiaries.
8.12 Indebtedness. (a) The Company will not, nor will it permit
------------
any of its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except:
(i) Indebtedness to the Banks hereunder;
(ii) Indebtedness outstanding on the Restatement Date and listed in
Schedule IV hereto and refinancings and extensions of any thereof that do
not increase the amount of such Indebtedness;
(iii) Subordinated Indebtedness;
(iv) Indebtedness of (x) Subsidiaries to the Company to the extent the
Company is permitted by Section 8.11 hereof to make Investments in
Subsidiaries or (y) Subsidiaries to other Subsidiaries;
(v) Guarantees permitted by Section 8.08 hereof;
(vi) Indebtedness under Working Capital Credit Lines;
(vii) Indebtedness in respect of letters of credit, banker's
acceptances and similar instruments issued or accepted for account of the
Company or any Subsidiary in the ordinary course of its business;
(viii) Indebtedness issued pursuant to the Senior Indenture;
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(ix) Indebtedness under Interest Rate Protection Agreements permitted
or required by Section 8.18 hereof; and
(x) additional Indebtedness of the Company and the Subsidiaries
(including, without limitation, Capital Lease Obligations and other
Indebtedness secured by Liens permitted under clauses (e) and (f) of
Section 8.10 hereof) up to but not exceeding $250,000,000 in the aggregate
at any one time outstanding.
(b) The Company will not permit the Indebtedness of all of the
Subsidiaries (other than Indebtedness owing to the Company or another
Subsidiary) to exceed $100,000,000 in the aggregate at any one time outstanding.
8.13 Leverage Ratio. The Company shall not permit the Leverage
--------------
Ratio to exceed the following respective percentages at any time during the
following respective periods:
TABLE USED HERE AND IN NEXT TWO
PARAGRAPHS.
Period Percentage
------ ----------
Amendment Effective Date to
December 30, 1996 76.0%
December 31, 1996 to
December 30, 1997 74.0%
December 31, 1997 to
December 30, 1998 70.0%
December 31, 1998 to
December 30, 1999 67.5%
December 31, 1999 to
December 30, 2000 62.5%
December 31, 2000 and
thereafter 60.0%
8.14 Funded Debt to Cash Flow Ratio. The Company will not permit the
------------------------------
Funded Ratio Debt to Cash Flow Ratio to exceed the following respective ratios
at any time during the following respective periods:
Period Ratio
------ -----
Amendment Effective Date to 5.00 to 1
December 30, 1997
December 31, 1997 to
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December 30, 1998 4.75 to 1
December 31, 1998 to
December 30, 1999 4.50 to 1
December 31, 1999 to
December 30, 2000 4.25 to 1
December 31, 2000 to
December 30, 2001 3.75 to 1
December 31, 2001 and
thereafter 3.25 to 1
8.15 Fixed Charge Coverage Ratio. The Company will not permit the
---------------------------
Fixed Ratio Charge Coverage Ratio to be less than the following respective
ratios at any time during the following respective periods:
Period Ratio
------ -----
Amendment Effective Date to
March 31, 1998 1.70 to 1
From April 1, 1998 to
March 31, 1999 2.00 to 1
From April 1, 1999 to
March 31, 2001 2.25 to 1
From April 1, 2001 and
thereafter 2.50 to 1
8.16 Use of Proceeds. The Company shall use the proceeds of the
---------------
Loans hereunder to finance the Acquisition, to refinance Indebtedness of the
Company under the Existing Credit Agreement, to make Capital Expenditures, to
finance acquisitions permitted by Section 8.09 hereof and for working capital
and in compliance with all applicable legal and regulatory requirements,
including, without limitation, Regulations U and X, the Securities Act and the
Exchange Act; provided that the proceeds of any Swingline Loan may not be used
--------
to repay any other Swingline Loan.
8.17 Margin Stock. The Company shall not permit more than 25% of the
------------
value (as determined by any reasonable method) of the Property of the Company
and the Subsidiaries subject to the restrictions of Section 8.07, 8.09 or 8.10
hereof (or any similar restriction) to be represented by margin stock (within
the meaning of Regulation U or X).
8.18 Interest Rate Protection Agreements.
-----------------------------------
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(a) The Company will not permit any of its Subsidiaries to enter into
or become obligated in respect of any Interest Rate Protection Agreement.
(b) Not later than 120 days after the Amendment Effective Date, the
Company shall cause, and thereafter maintain, through a combination of Interest
Rate Protection Agreements and fixed rate Funded Debt, the effective fixed rate
component of its Funded Debt to be approximately equal to or greater than 50%.
8.19 Issuance of Subordinated Debt or Equity. On or before the Series
---------------------------------------
I Term Loan Final Maturity Date, the Company shall issue for not less than
$500,000,000 in cash either (a) Subordinated Indebtedness, (b) Equity or (c) a
combination of Subordinated Indebtedness and Equity, the net available proceeds
of which shall be applied as provided in Section 2.10(f)(i) hereof.
8.20 Modifications of Certain Documents. The Company will not consent
----------------------------------
to any modification, supplement or waiver of any of the provisions of a
Permitted Receivables Sale Agreement, the Senior Indenture or any agreement,
instrument or other document evidencing or relating to Subordinated
Indebtedness, in each case without the prior consent of the Managing Banks.
8.21 Subsidiary Equity Issuance. The Company shall not permit any
--------------------------
Subsidiary to issue Equity to any Person other than the Company or a Wholly-
Owned Subsidiary except (a) directors' qualifying shares and (b) in connection
------
with the establishment or capitalization of a bona fide joint venture with the
---- ----
Person or Persons to whom such Equity is issued.
8.22 Ratings by ▇▇▇▇▇'▇ and S&P. The Company will at all times use
--------------------------
its best efforts to cause ▇▇▇▇▇'▇ and S&P to rate the Company Senior Long-Term
Debt.
Section 9. Events of Default. If one or more of the following
-----------------
events (herein called "Events of Default") shall occur and be continuing:
-----------------
(a) The Company shall default in the payment of any principal of any
Loan when due; or the Company shall default in the payment of any interest
on any Loan or any other amount payable by it hereunder to any Bank or the
Administrative Agent when due which nonpayment shall have continued for a
period of two Business Days or more; or
(b) (i) Default by the Company or any Subsidiary in the payment of
any Indebtedness of the Company or any
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Subsidiary, (ii) any event specified in any note, agreement, indenture or
other document evidencing or relating to any Indebtedness shall occur if
the effect of such event is to cause, or (with the giving of any notice or
the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, such Indebtedness to become due prior to its stated maturity or
(iii) any event specified in any Interest Rate Protection Agreement shall
occur if the effect of such event is to cause, or (with the giving of any
notice or the lapse of time or both) to permit, termination or liquidation
payment or payments to become due; except, in each case that may otherwise
be covered by clauses (i) or (ii) of this paragraph (b), for a default on
Indebtedness or payments not exceeding $50,000,000 in an aggregate amount;
or
(c) Any representation, warranty or certification made or deemed made
in any of the Credit Documents by the Company or in the Asset Purchase
Agreement by any of the parties thereto, or any certificate furnished to
any Bank or the Administrative Agent or the Swingline Bank pursuant to the
provisions hereof, shall prove to have been false or misleading as of the
time made or deemed made or furnished in any material respect; or
(d) The Company shall default in the performance of any of its
obligations under Section 8.01(k) or Sections 8.06 through 8.19 (inclusive)
hereof; or the Company shall default in the performance of any of its other
obligations in this Agreement, under the Asset Purchase Agreement or under
the Permitted Receivables Sale Agreements and such default shall continue
unremedied for a period of 30 days after notice thereof to the Company by
the Administrative Agent or any Bank (through the Administrative Agent); or
(e) The Company or any Subsidiary having total assets of $50,000,000
or more shall admit in writing its inability to, or be generally unable to,
pay its debts as such debts become due; or
(f) The Company or any Subsidiary having total assets of $50,000,000
or more shall (i) apply for or consent to the appointment of, or the taking
of possession by, a receiver, custodian, trustee or liquidator of itself or
of all or a substantial part of its property, (ii) make a general
assignment for the benefit of its creditors, (iii) commence a voluntary
case under the Bankruptcy Code (as now or hereafter in effect), (iv) file a
petition seeking to take advantage of any other law relating to bankruptcy,
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insolvency, reorganization, winding-up, or composition or readjustment of
debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
case under the Bankruptcy Code, or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the Company or any Subsidiary having total assets of
$50,000,000 or more, in any court of competent jurisdiction, seeking (i)
its liquidation, reorganization, dissolution or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of the Company or such
Subsidiary or of all or any substantial part of its assets, or (iii)
similar relief in respect of the Company or such Subsidiary under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree approving or ordering
any of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 days; or an order for relief against the Company or such
Subsidiary shall be entered in an involuntary case under the Bankruptcy
Code; or
(h) If (i) a final judgment which, with other outstanding final
judgments against the Company and all Subsidiaries, exceeds an aggregate of
$100,000,000 shall be rendered against the Company or any Subsidiary and
(ii) within 60 days after entry thereof, such judgment shall not have been
discharged, vacated or reversed or execution thereof stayed pending appeal
or within 60 days after the expiration of any such stay, such judgment
shall not have been discharged, vacated or reversed; or
(i) An event or condition (i) which might constitute grounds under
Section 4042 of ERISA for the termination of, or for the appointment of a
trustee to administer, any Plan or Multiemployer Plan and which involves a
liability of the Company to PBGC in excess of $25,000,000 or (ii) leading
to the receipt by the Company from the PBGC of a notice of its intention to
terminate any Plan or Multiemployer Plan or to have a trustee appointed to
administer any such Plan or Multiemployer Plan shall occur or exist and, as
a result of such event or condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur or in the
opinion of the Majority Banks shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or PBGC (or any combination of
the foregoing) which is, in the determination of the Majority
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Banks, material in relation to the consolidated financial position of the
Company and the Subsidiaries; or
(j) Any person or group of persons (within the meaning of Section 13
or 14 of the Exchange Act, it being agreed that an employee of the Company
or any Subsidiary for whom shares are held under an employee stock
ownership, employee retirement, employee savings or similar plan and whose
shares are voted in accordance with the instructions of such employee shall
not be a member of a group of persons within the meaning of said Section 13
or 14 solely because such employee's shares are held by a trustee under
said plan) shall acquire, directly or indirectly, beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the SEC under said Act, as
amended) of more than 50% of the outstanding shares of stock of the Company
having by the terms thereof ordinary voting power to elect (whether
immediately or ultimately) a majority of the board of directors of the
Company (irrespective of whether or not at the time stock of any other
class or classes of stock of the Company shall have or might have voting
power by reason of the happening of any contingency); or
(k) During any period of 25 consecutive calendar months, a majority
of the Board of Directors of the Company shall no longer be composed of
individuals (i) who were members of said Board on the first day of such
period, (ii) whose election or nomination to said Board was approved by
individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of said Board or (iii)
whose election or nomination to said Board was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of said Board; or
(l) The combined statement of financial position of the Acquired
Business as at December 31, 1995 and the respective related combined
statements of earnings, cash flows and changes in invested equity of the
Acquired Business for the period ended on such date, with the opinion
thereon of Price Waterhouse LLP, furnished to the Banks before the
Restatement Date, shall prove to have failed to present fairly, in any
material respect, the financial position of the Acquired Business as at
such date or the combined results of its operations for the period covered
thereby;
THEREUPON: (i) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 9, (x) the Administrative Agent, upon request
of the Majority Banks or, with respect to the Swingline Commitment, of the
Swingline Bank,
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shall, by notice to the Company, cancel the Commitments and/or the Swingline
Commitment (and upon any such cancellation of the Swingline Commitment, the
Administrative Agent shall give notice thereof to the Banks) and (y) the
Administrative Agent, upon request of one or more Banks holding more than 50% of
the aggregate outstanding principal amount of Loans or, with respect to the
Swingline Loans, upon request of the Swingline Bank, shall, by notice to the
Company, declare the principal amount then outstanding of and the accrued
interest on such Loans and all other amounts payable by the Company hereunder
and under the Notes to be forthwith due and payable, whereupon such amounts
shall be immediately due and payable without presentment, demand, protest or
other formalities of any kind, all of which are hereby expressly waived by the
Company; and (ii) in the case of the occurrence of an Event of Default referred
to in clause (f) or (g) of this Section 9, the Commitments and the Swingline
Commitment shall be automatically canceled and the principal amount then
outstanding of, and the accrued interest on, the Loans and all other amounts
payable by the Company hereunder and under the Notes shall become automatically
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company.
Without limiting Section 11.04 hereof, the Majority Banks may, on
behalf of all the Banks, waive, for the period and on the conditions (if any)
specified in such waiver, any Event of Default arising from the failure by the
Company to perform any of its obligations under Section 8 hereof and any
consequences thereof (including any termination of the Commitments and/or any
declaration that the principal of and interest on the Loans and all other
amounts payable by the Company hereunder and under the Notes shall be forthwith
due and payable). In the case of any such waiver, the Company, the Banks and
the Administrative Agent, for said period and on said conditions, shall be
restored to their respective former positions and rights hereunder and under the
Notes, and any Event of Default so waived shall, for said period and on said
conditions, be deemed not to be continuing for the purposes of this Agreement;
provided that no such waiver shall extend to any subsequent or other Event of
--------
Default or impair any other right of any Bank or the Administrative Agent
hereunder or under the Notes.
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Section 10. Agency Provisions.
-----------------
10.01 Appointment, Powers and Immunities. Each Bank and the
----------------------------------
Swingline Bank hereby irrevocably appoints and authorizes the Administrative
Agent to act as its agent hereunder with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto. The Administrative
Agent (which term as used in this sentence and in Section 10.05 hereof shall
include reference to its affiliates and its own and its affiliates' officers,
directors, employees and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Agreement and shall
not by reason of this Agreement be a trustee for any Bank or the Swingline Bank;
(b) shall not be responsible to the Banks or the Swingline Bank for any
recitals, statements, representations or warranties contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by any of them under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any Note or any other document referred to or provided for herein or for any
failure by the Company or any other Person to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder; and (d) shall not be responsible
for any action taken or omitted to be taken by it hereunder or under any other
document or instrument referred to or provided for herein or in connection
herewith, except for its own gross negligence or willful misconduct. The
Administrative Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or attorneys-in-
fact selected by it in good faith. The Administrative Agent may deem and treat
the payee of any Note as the holder thereof for all purposes hereof unless and
until (except in the case of an assignment pursuant to Section 11.06(f) hereof)
a written notice of the assignment or transfer thereof shall have been filed
with the Administrative Agent, together with the written consent of the Company
to such assignment or transfer.
10.02 Reliance. The Administrative Agent shall be entitled to rely
--------
upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by it; and as to any matters not expressly provided for
by this Agreement, it shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by the
Majority Banks, and such instructions and any action taken or
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failure to act pursuant thereto shall be binding on all of the Banks.
10.03 Defaults. The Administrative Agent shall not be deemed to have
--------
knowledge of the occurrence of a Default unless it has received notice from a
Bank or the Company specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Administrative Agent receives such a
notice of the occurrence of a Default, it shall give prompt notice thereof to
the Banks. The Administrative Agent shall (subject to Sections 10.01, 10.07 and
11.04 hereof) take such action under the Credit Documents with respect to such
Default as shall be directed by the Majority Banks, provided that, unless and
--------
until it shall have received such directions, it may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Banks.
10.04 Rights as a Bank and as the Swingline Bank. With respect to its
------------------------------------------
Commitment, its Swingline Commitment and the Loans made by it, Chase (and any
successor acting as Administrative Agent) in its capacity as a Bank or the
Swingline Bank hereunder shall have the same rights and powers hereunder as any
other Bank or the Swingline Bank and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Bank" or "Banks" or "Swingline
Bank" shall, unless the context otherwise indicates, include each of the
Administrative Agent in its individual capacity. Chase (and any successor
acting as Administrative Agent) and its affiliates may (without having to
account therefor to any Bank) accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with the Company (and any
of its affiliates) as if it were not acting as the Administrative Agent, and
Chase and its affiliates may accept fees and other consideration from the
Company for services in connection with this Agreement or otherwise without
having to account for the same to the Banks.
10.05 Indemnification. The Banks agree to indemnify the
---------------
Administrative Agent (to the extent not reimbursed under Section 11.03 hereof,
but without limiting the obligations of the Company under said Section 11.03),
ratably in accordance with their respective Commitments (or, if the Commitments
shall have terminated, ratably in accordance with the outstanding principal
amounts of the Loans held by the respective Banks), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against it in any way relating to or arising out of
this Agreement or any other Credit Document, or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (including, without
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limitation, the costs and expenses which the Company is obligated to pay under
Section 11.03 hereof but excluding, unless a Default has occurred and is
continuing, normal administrative costs and expenses incident to the performance
of its agency duties hereunder) or the enforcement of any of the terms hereof or
of any other Credit Document or of any such other documents, provided that no
--------
Bank shall be liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the party to be indemnified.
10.06 Non-Reliance. Each Bank agrees that it has, independently and
------------
without reliance on either the Administrative Agent (which term as used in this
sentence shall include reference to its affiliates and its own and its
affiliates' officers, directors, employees and agents) or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Company and the Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Administrative 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
analysis and decisions in taking or not taking action under this Agreement. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Company of this Agreement or any other document
referred to or provided for herein or to inspect the properties or books of the
Company or any Subsidiary. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Company or any
Subsidiary (or any of their affiliates) which may come into its possession or
the possession of any of its affiliates.
10.07 Failure to Act. Except for action expressly required of the
--------------
Administrative Agent hereunder, the Administrative Agent shall in all cases be
fully justified in failing or refusing to act hereunder unless it shall receive
further assurances to its satisfaction from the Banks of their indemnification
obligations under Section 10.05 hereof against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action.
10.08 Resignation or Removal of Administrative Agent. Subject to the
----------------------------------------------
appointment and acceptance of a successor as provided below, the Administrative
Agent may resign at any time by giving notice thereof to the Banks and the
Company and the Administrative Agent may be removed at any time with or without
cause by the Majority Banks. Upon any such resignation or
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----------------
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removal, the Majority Banks shall, after consultation with the Company, have the
right to appoint a successor. If no successor shall have been so appointed by
the Majority Banks and shall have accepted such appointment within 30 days after
the retiring Agent's giving of notice of resignation or the Majority Banks'
removal of the Administrative Agent, then the retiring Administrative Agent may,
on behalf of the Banks, after consultation with the Company, appoint a
successor, which shall be a bank with a combined capital and surplus of at least
$1,000,000,000. Upon the acceptance of any appointment hereunder by a successor,
such successor shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder, the provisions of this Section 10 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting hereunder.
10.09 Agents, Etc. The Documentation Agent and the Syndication Agent
-----------
identified on the cover page of this Agreement shall have no duties or
responsibilities hereunder other than as Banks hereunder or, in the case of
Chase, as Swingline Bank and as Administrative Agent. Each Managing Bank acts
hereunder in its individual capacity and not as agent for the Banks and shall
have no duties or responsibilities hereunder to any other Bank (except, in the
case of Chase, when it is acting in its capacity as Administrative Agent).
Section 11. Miscellaneous.
-------------
11.01 Waiver. No failure on the part of the Administrative Agent,
------
any Bank or the Swingline Bank to exercise and no delay in exercising, and no
course of dealing with respect to, any right, power or privilege under this
Agreement or any other Credit Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege under this
Agreement or any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The remedies
provided herein are cumulative and not exclusive of any remedies provided by
law.
11.02 Notices. All notices and other communications provided for
-------
herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made by telecopy or in writing
(or, with respect to notices given pursuant to Sections 2.02, 2.03 and 4.07
hereof, by telephone, confirmed in writing by telecopy by the close of business
on the day the notice is given); and
Credit Agreement
----------------
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telecopied, mailed or delivered (or telephoned, as the case may be) to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Officers of the
Company authorized to give such telephone notices shall be designated by the
Company in writing to the Administrative Agent and notices given by anyone
purporting to be any one of the designated officers may be honored by the
Administrative Agent. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
11.03 Expenses, Etc. The Company agrees to pay or reimburse each of
-------------
the Banks, the Swingline Bank and the Administrative Agent for paying: (a) the
reasonable fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special New
York counsel to the Banks and the Swingline Bank, in connection with (i) the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the making of the Loans hereunder and (ii) any amendment,
modification or waiver of any of the terms of this Agreement or any of the other
Credit Documents; (b) all reasonable costs and expenses of the Administrative
Agent (including, without limitation, telephone, telex and courier expenses and
printing and publishing costs) in connection with the negotiation, syndication
and execution of this Agreement and the other Credit Documents; (c) all
reasonable costs and expenses of the Banks, the Swingline Bank and the
Administrative Agent (including reasonable counsels' fees and allocated expenses
of in-house lawyers) in connection with the enforcement of this Agreement or any
of the other Credit Documents; and (d) all transfer, stamp, documentary or other
similar taxes, assessments or charges levied by any governmental or revenue
authority in respect of this Agreement, any of the other Credit Documents or any
other document referred to herein or therein.
The Company hereby agrees to indemnify the Administrative Agent and
each Bank and their respective directors, officers, employees, attorneys and
agents from, and hold each of them harmless against, any and all losses,
liabilities, claims, damages or expenses incurred by any of them (including,
without limitation, any and all losses, liabilities, claims, damages or expenses
incurred by the Administrative Agent to any Bank, whether or not the
Administrative Agent or any Bank is a party thereto) arising out of or by reason
of any investigation or litigation or other proceedings (including any
threatened investigation or litigation or other proceedings) relating to the
Loans hereunder or any actual or proposed use by the Company or any of its
Subsidiaries of the proceeds of any of
Credit Agreement
----------------
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the Loans hereunder, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation or
litigation or other proceedings (but excluding any such losses, liabilities,
claims, damages or expenses incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified).
11.04 Amendments, Etc. Any provision of this Agreement may be
---------------
amended, waived or otherwise modified only by an instrument signed by the
Company and the Majority Banks, or by the Company and the Administrative Agent
acting with the consent of the Majority Banks, and, if the rights or obligations
hereunder of the Swingline Bank are affected thereby, the Swingline Bank, and
any provision of this Agreement may be waived by the Majority Banks or by the
Administrative Agent acting with the consent of the Majority Banks and, if the
rights or obligations hereunder of the Swingline Bank are affected thereby, the
Swingline Bank; provided that (a) no amendment, waiver or other modification
--------
shall, unless by an instrument signed by all of the Banks or by the
Administrative Agent acting with the consent of all of the Banks: (i) increase
or extend the term, or extend the time or waive any requirement for the
reduction or termination, of any of the Commitments or the Swingline Commitment,
(ii) extend the date fixed for the payment of principal of or interest on any
Loan, (iii) reduce the amount of any payment of principal thereof or the rate at
which interest is payable thereon or any Fee is payable hereunder, (iv) alter
the terms of clause (f) or (g) of Section 9 hereof, the paragraph of Section 9
hereof beginning with the word "THEREUPON" or this Section 11.04, (v) amend the
definition of the term "Majority Banks" or modify in any other manner the number
or percentage of the Banks required to make any determinations or waive any
rights hereunder or to modify any provision hereof, (vi) waive any of the
conditions precedent set forth in Section 6 hereof, (vii) alter any provision of
this Agreement insofar as such provision requires the consent or approval of all
of the Banks or (viii) alter any provision of this Agreement that would have the
effect set forth in any of the foregoing clauses (i) through (vii), (b) any
amendment of Section 10 hereof, or any provision which increases the obligations
of the Administrative Agent hereunder, shall require the consent of the
Administrative Agent and (c) any modification of any of the rights or
obligations of the Swingline Bank shall require the consent of the Swingline
Bank.
11.05 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
Credit Agreement
----------------
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11.06 Assignments and Participations.
------------------------------
(a) The Company may not assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the Banks and
the Administrative Agent and the Swingline Bank.
(b) A Bank may assign any of its Loans, its Notes, its Commitments or
its interest acquired under Section 2.02(b) hereof in Swingline Loans to any
other Person only with the prior consent of the Company and the Administrative
Agent and, in the case of its Revolving Credit Commitment or its interest in any
Swingline Loans, the Swingline Bank (which consent, in each case, may not be
unreasonably withheld or delayed; it being agreed that the Company, in
determining whether to give such consent, may reasonably consider, without
limitation of other factors that the Company may reasonably consider, the
financial capability, financial rating and location of a proposed assignee and
any prior business relationships between the Company and a proposed assignee,
provided that any such determination shall be made by the Company in good faith
--------
and after consideration of all relevant factors); provided that (x) any Bank may
--------
assign to another Bank all or any portion of its Commitments or Loans and (y)
unless the Company and the Administrative Agent shall otherwise consent, any
such partial assignment (other than to another Bank) shall be in an aggregate
principal amount equal to $10,000,000 or any integral multiple of $1,000,000 in
excess thereof. For purposes of making the determination described in the first
sentence of this Section 11.06(b) of whether to give its consent to an
assignment by any Bank, the Company (i) recognizes that the initial aggregate
amount of the Commitments of such Bank may exceed significantly the final amount
that such Bank intends to hold on a long term basis and (ii) agrees to consider
the targeted final hold amount of such Bank as disclosed to the Company by such
Bank. Upon written notice to the Company and the Administrative Agent and (if
necessary) the Swingline Bank of an assignment permitted by the provisos of the
preceding sentence (which notice shall identify the assignee Bank, the amount of
the assignor Bank's Commitments and Loans assigned in detail reasonably
satisfactory to the Administrative Agent) and upon the effectiveness of any
assignment consented to by the Company and the Administrative Agent and (if
necessary) the Swingline Bank, the assignee shall have, to the extent of such
assignment (unless otherwise provided in such assignment with the consent of the
Company and the Administrative Agent and the Swingline Bank), the obligations,
rights and benefits of a Bank hereunder holding the Commitments and Loans and
interests in Swingline Loans (or portions thereof) assigned to it (in addition
to the Commitments and Loans, if any, theretofore held by such assignee). Upon
the effectiveness of any assignment of any of its Commitments or Loans, the
assignor Bank or the assignee (as agreed between them)
Credit Agreement
----------------
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shall pay to the Administrative Agent a transfer fee in an amount equal to
$3,000; provided that the assignee Bank shall pay any transfer fee payable in
--------
connection with any assignment effected pursuant to Section 2.04(e) hereof.
(c) The Swingline Bank may not (except as provided in Section 2.02(b)
hereof) assign or sell participations in all or any part of its Swingline Loans,
its Swingline Note or its Swingline Commitment; provided that the Swingline Bank
may assign to another Bank all of its obligations, rights and benefits in
respect of its Swingline Loans, its Swingline Note and its Swingline Commitment.
Upon the effectiveness of any such assignment, the assignee shall have the
obligations, rights and benefits of the Swingline Bank hereunder holding the
Swingline Commitment and Swingline Loans assigned to it, and the assigning
Swingline Bank shall be released from its Swingline Commitment so assigned.
(d) A Bank may sell to one or more other Persons a participation in
all or any part of any Loan held or to be made by it or in any of its
Commitments, in which event each such participant shall not have any rights or
benefits under this Agreement or any Note (the participant's rights against such
Bank in respect of such participation to be those set forth in the agreement
(the "Participation Agreement") executed by such Bank in favor of the
-----------------------
participant). All amounts payable by the Company to any Bank under Section 5
hereof shall be determined as if such Bank had not sold any participations in
such Loan and in such Commitment and as if such Bank were funding all of such
Loan in the same way that it is funding the portion of such Loan and such
Commitment in which no participations have been sold. In no event shall a Bank
that sells a participation be obligated to the participant under the
Participation Agreement to take or refrain from taking any action hereunder or
under such Bank's Note(s) except that such Bank may agree in the Participation
Agreement that it will not, without the consent of the participant, agree to (i)
the increase or the extension of the term, or the extension of the time or waive
any requirement for the reduction or termination, of such Bank's Commitment,
(ii) the extension of any date fixed for the payment of principal of or interest
on the related Loan or Loans, (iii) the reduction of any payment of principal
thereof, (iv) the reduction of the rate at which either interest is payable
thereon or (if the participant is entitled to any part thereof) commitment fee
or facility fee is payable hereunder to a level below the rate at which the
participant is entitled to receive interest or commitment fee or facility fee
(as the case may be) in respect of such participation or (v) take any other
action that, under this Agreement, requires the consent or approval of all of
the Banks.
Credit Agreement
----------------
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(e) A Bank may furnish any information concerning the Company or any
Subsidiary in the possession of such Bank from time to time to any of its
affiliates or its assignees and participants (including prospective assignees
and participants), subject to the provisions of Section 11.11 hereof.
(f) Any Bank may at any time assign and pledge to any Federal Reserve
Bank (or to an affiliate of such Bank for the purpose of permitting such
affiliate to assign and pledge to any Federal Reserve Bank), as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank all or any portion of its Loans and its Notes. No such
assignment shall release the assigning Bank from its obligations hereunder.
11.07 Survival. The obligations of the Company under Sections 5.01,
--------
5.05 and 11.03 hereof shall survive the repayment of the Loans and the
termination of the Commitments.
11.08 Captions. Captions and section headings appearing herein are
--------
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
11.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 Governing Law; Submission to Jurisdiction; Waiver of Jury
---------------------------------------------------------
Trial. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
-----
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE COMPANY HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK COUNTY FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.11 Confidentiality. Each Bank and the Administrative Agent agrees
---------------
(on behalf of itself and each of its
Credit Agreement
----------------
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affiliates, directors, officers, employees and representatives) to keep
confidential, in accordance with their customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, any non-public information supplied to it by the Company
pursuant to this Agreement which is identified by the Company as being
proprietary, private and/or confidential at the time the same is delivered to
the Banks or the Administrative Agent, provided that nothing herein shall limit
--------
the disclosure of any such information (a) to the extent required by statute,
rule, regulation or judicial process, (b) to counsel for any of the Banks or the
Administrative Agent, (c) to bank examiners, auditors or accountants, (d) to the
Administrative Agent or any other Bank, (e) in connection with any litigation to
which any one or more of the Banks or the Administrative Agent is a party or (f)
to any assignee or participant (or prospective assignee or participant) SO LONG
AS SUCH ASSIGNEE OR PARTICIPANT (OR PROSPECTIVE ASSIGNEE OR PARTICIPANT) FIRST
EXECUTES AND DELIVERS TO THE RESPECTIVE BANK A CONFIDENTIALITY AGREEMENT IN
SUBSTANTIALLY THE FORM OF EXHIBIT D HERETO (WHEREUPON SUCH BANK SHALL PROMPTLY
DELIVER A COPY OF SUCH CONFIDENTIALITY AGREEMENT TO THE COMPANY); provided,
--------
further, that (i) unless specifically prohibited by applicable law or court
order, each Bank and the Administrative Agent shall, prior to disclosure
thereof, notify the Company of any request for disclosure of any such non-public
information (x) by any governmental agency or representative thereof (other than
any such request in connection with an examination of the financial condition of
such Bank by such governmental agency) or (y) pursuant to legal process and (ii)
in no event shall any Bank or the Administrative Agent be obligated or required
to return any materials furnished by the Company; and, provided, finally, that
--------
no Bank shall, without the Company's prior consent, provide any information
relating to projections of the Company's financial performance to any
participant or any prospective assignee or participant (other than any bank or
other financial institution identified to the Company as a participant under the
Existing Credit Agreement in a notice given to the Company prior to the
Restatement Date), and, in lieu thereof, the Company shall, promptly following
the request of any Bank and at the Company's expense, provide to a participant
(or prospective assignee or participant) of such Bank any information relating
to projections of the Company's financial performance that has been made
available to such Bank. Each Bank agrees that money damages would not be a
sufficient remedy for any breach of such Bank's obligations under this Section
11.11 and that, in addition to all other remedies available to the Company at
law or in equity, the Company shall be entitled to injunctive relief against
such Bank as a remedy for such breach.
Credit Agreement
----------------
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
NORTHROP GRUMMAN CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
Address for Notices:
Northrop Grumman Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Corporate Vice President and
Treasurer
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
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SWINGLINE COMMITMENT THE BANKS
-------------------- ---------
$100,000,000 THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
The Chase Manhattan Bank
(National Association)
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Chase Manhattan Bank
(National Association)
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
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CHEMICAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
Lending Office for all Loans:
Bank of America National Trust
and Savings Association
Global Payment Operations #5693
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Bank of America National Trust
and Savings Association
Credit Products LA II #5618
11th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
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▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for Base
Rate Loans:
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Branch
c/o ▇.▇ ▇▇▇▇▇▇ Securities Inc.
Loan Operations - 3rd Floor
▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office for
Eurodollar Loans:
▇▇▇▇▇▇ Guaranty Trust Company
of New York
Nassau, Bahamas Office
c/o ▇.▇ ▇▇▇▇▇▇ Securities Inc.
Euro-Loan Servicing Unit
▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
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BANK OF MONTREAL
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Title: Director
Lending Office for all Loans:
Bank of Montreal
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Bank of Montreal
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
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THE BANK OF NEW YORK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
The Bank of New York
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
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THE BANK OF NOVA SCOTIA
By /s/ Maarten Van Otterloo
--------------------------
Title: Senior Relationship
Manager
Lending Office for all Loans:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Bank of Nova Scotia
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Agreement
----------------
- 102 -
BANKERS TRUST COMPANY
By /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 103 -
CANADIAN IMPERIAL BANK OF
COMMERCE
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Title: Managing Director
Lending Office for all Loans:
Canadian Imperial Bank of
Commerce
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Canadian Imperial Bank of
Commerce
Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 104 -
CITICORP USA, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
Citicorp USA, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Citicorp USA, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 105 -
CREDIT LYONNAIS CAYMAN
ISLAND BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Authorized Signatory
Lending Office for all Loans:
Credit Lyonnais Cayman
Island Branch
c/o Credit Lyonnais
Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Credit Lyonnais Cayman
Island Branch
c/o Credit Lyonnais
Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 106 -
CREDIT SUISSE
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------
Title: Member of Senior
Management
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------
Title: Associate
Lending Office for all Loans:
Credit Suisse
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Credit Suisse
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Asa
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 107 -
DRESDNER BANK AG
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Senior Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Title: Vice President
Lending Office for all Loans:
Dresdner Bank AG
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Dresdner Bank AG
Credit Services
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 108 -
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ L. ▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Senior Vice President
Lending Office for all Loans:
The First National Bank of
Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
The First National Bank of
Chicago
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 109 -
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
Lending Office for all Loans:
First Union National Bank
of North Carolina
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
First Union National Bank
of North Carolina
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 110 -
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Deputy General Manager
Lending Office for all Loans:
The Long-Term Credit Bank of
Japan, Ltd., Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 90071-
2938
Address for Notices:
The Long-Term Credit Bank of
Japan, Ltd., Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 90071-
2938
Attention: ▇▇▇▇▇ ▇▇
Wing ▇. ▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 111 -
MELLON BANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
Mellon Bank, N.A.
Three Mellon Bank Center
Room #2304
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Mellon Bank, N.A.
Three Mellon ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 112 -
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
Lending Office for all Loans:
The Mitsubishi Trust and Banking
Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Mitsubishi Trust and Banking
Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇ or
▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 113 -
NATIONSBANK OF TEXAS, N.A.
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
Lending Office for all Loans:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 114 -
NATIONAL WESTMINSTER BANK PLC NEW
YORK AND/OR NASSAU BRANCHES
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
National Westminster Bank Plc
New York and/or Nassau Branches
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
National Westminster Bank Plc
New York and/or Nassau Branches
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇/4149
Credit Agreement
----------------
- 115 -
ROYAL BANK OF CANADA
By /s/ ▇▇▇▇▇▇▇ Korine
---------------------
Title: Senior Manager
Lending Office for all Loans:
Royal Bank of Canada
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Address for Notices:
Royal Bank of Canada
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Korine
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 116 -
SOCIETE GENERALE
By /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
SOCIETE GENERALE
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
SOCIETE GENERALE
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 117 -
THE SUMITOMO BANK, LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------
Title: General Manager
Lending Office for all Loans:
The Sumitomo Bank, Limited
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Sumitomo Bank, Limited
The Los Angeles Branch
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier No.:
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 118 -
TORONTO DOMINION (TEXAS), INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Title: Vice President
Lending Office for all Loans:
The Toronto-Dominion Bank
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Toronto-Dominion Bank
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 119 -
WACHOVIA BANK OF GEORGIA, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
Lending Office for all Loans:
Wachovia Bank of Georgia, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Wachovia Bank of Georgia, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 120 -
ABN AMRO BANK N.V., LOS ANGELES
INTERNATIONAL BRANCH
By ABN AMRO North America, Inc.,
as agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Title: Vice President
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Title: Vice President
Lending Office for all Loans:
ABN Amro Bank N.V., Los Angeles
International Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
ABN Amro Bank N.V., Los Angeles
International Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 121 -
THE MITSUBISHI BANK, LTD.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
The Mitsubishi Bank, Ltd.
c/o The Bank of California, N.A.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
The Mitsubishi Bank, Ltd.
c/o The Bank of California, N.A.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 122 -
BANQUE PARIBAS
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
By /s/ ▇▇▇▇ ▇▇▇▇
---------------------------
Title: Group Vice President
Lending Office for all Loans:
Banque Paribas
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Banque Paribas
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 123 -
BZW DIVISION OF BARCLAYS BANK PLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------
Title: Director
Lending Office for all Loans:
BZW Division of Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
BZW Division of Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Address for Funding:
▇▇▇▇▇ ▇▇▇▇-sui
Client Services Unit
Barclays Group Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇/1099
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 124 -
COMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENNE
By /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
---------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
Compagnie Financiere de Cic et de
L'Union Europeenne
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Compagnie Financiere de Cic et de
L'union Europeenne
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 125 -
THE DAI-ICHI KANGYO BANK, LTD.,
LOS ANGELES AGENCY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President &
Joint General Manager
Lending Office for all Loans:
The Dai-Ichi Kangyo Bank, Ltd.,
Los Angeles Agency
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Dai-Ichi Kangyo Bank, Ltd.,
Los Angeles Agency
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 126 -
DEUTSCHE BANK AG
LOS ANGELES BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for Base Rate
Loans:
Deutsche Bank AG
Los Angeles Branch
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lending Office for Eurodollar
Loans:
Deutsche Bank AG
Cayman Islands Branch
c/o Los Angeles Branch
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Deutsche Bank AG
Los Angeles Branch and/or
Cayman Island Branch
c/o Los Angeles Branch
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 127 -
THE FUJI BANK, LIMITED
LOS ANGELES AGENCY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: Joint General Manager
Lending Office for all Loans:
The Fuji Bank, Limited
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Fuji Bank, Limited
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 128 -
MIDLAND BANK PLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------
Title: Director
Lending Office for all Loans:
Midland Bank Plc
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Midland Bank Plc
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 129 -
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By /s/ Kazutaka Kiyoto
----------------------------
Title: Senior Vice President
Lending Office for all Loans:
The Industrial Bank of Japan,
Limited, Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Industrial Bank of Japan,
Limited, Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 130 -
▇▇▇▇▇▇ BANK LTD.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Title: Vice President
Lending Office for all Loans:
▇▇▇▇▇▇ Bank Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇▇▇▇ Bank Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 131 -
THE NIPPON CREDIT BANK, LTD. -
LOS ANGELES AGENCY
By/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Title: Assistant Vice President
By/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President &
Senior Manager
Lending Office for all Loans:
The Nippon Credit Bank, Ltd. -
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The Nippon Credit Bank, Ltd. -
Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 132 -
BANCA COMMERCIALE ITALIANA
LOS ANGELES FOREIGN BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Vice President & Manager
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
Lending Office for all Loans:
Banca Commerciale Italiana
Los Angeles Foreign Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Banca Commerciale Italiana
Los Angeles Foreign Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 133 -
BANCA DI ROMA, SAN FRANCISCO
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
-----------------------------
Title: Senior Vice President &
Manager
Lending Office for all Loans:
Banca di Roma, San Francisco
One ▇▇▇▇▇▇▇▇▇▇ Street
Telesis Tower
Suite 2200
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Banca di Roma, San Francisco
One ▇▇▇▇▇▇▇▇▇▇ Street
Telesis Tower
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
First Vice President
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 134 -
BAYERISCHE VEREINSBANK AG
LOS ANGELES BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Vice President & Manager
Lending Office for all Loans:
Bayerische Vereinsbank AG
Los Angeles Branch
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Bayerische Vereinsbank AG
Los Angeles Branch
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 135 -
BANQUE NATIONALE DE PARIS
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President &
Manager
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Title: Vice President
Lending Office for all Loans:
Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Vice President
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
--------------
BNP Los Angeles
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Vice President
Telecopier No.: 213-488-9682
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 136 -
CARIPLO-CASSA DI RISPARMIO DELLE
PROVINCIE LOMBARDE S.P.A.
GRAND CAYMAN BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: First Vice President
Lending Office for all Loans:
Cariplo-Cassa di Risparmio delle
Provincie Lombarde S.p.A.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Cariplo-Cassa di Risparmio delle
Provincie Lombarde S.p.A.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: 212-527-8777
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 137 -
CORESTATES BANK, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
Lending Office for all Loans:
Corestates Bank
Commercial Loan Accounting
FC: 1-3-17-70
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Corestates Bank
Commercial Loan Accounting
FC: 1-3-17-70
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- ▇▇▇ -
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Senior Vice President
Lending Office for all Loans:
First Interstate Bank of California
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
First Interstate Bank of California
Loan Servicing Center
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 139 -
GULF INTERNATIONAL BANK B.S.C.
By /s/ Abdel-Fattah Tahoun
----------------------------
Title: Senior Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Vice President
Lending Office for all Loans:
Gulf International Bank B.S.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Gulf International Bank B.S.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 140 -
KREDIETBANK NV
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
Kredietbank NV
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
Kredietbank NV
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 141 -
LLOYDS BANK PLC
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Senior Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Assistant Vice President
Lending Office for Base Rate
Loans:
Lloyds Bank Plc
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Lending Office for Eurodollar
Loans:
Lloyds Bank Plc
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Address for Notices:
Lloyds Bank Plc
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
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- 142 -
PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Vice President & Manager
Lending Office for all Loans:
PNC Bank, National Association
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Address for Notices:
PNC Bank, National Association
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
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- 143 -
THE ROYAL BANK OF SCOTLAND plc
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
The Royal Bank of Scotland plc
Wall Street Plaza
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Address for Notices:
The Royal Bank of Scotland plc
Wall Street Plaza
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 144 -
THE SANWA BANK, LIMITED
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Title: First Vice President &
Manager
Lending Office for all Loans:
The Sanwa Bank, Limited
Los Angeles Branch
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Address for Notices:
The Sanwa Bank, Limited
Los Angeles Branch
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
First Vice President
Telecopier No.: 213-623-4912
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
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- 145 -
THE SAKURA BANK, LIMITED
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
Title: Senior Vice President &
Assistant General Manager
Lending Office for all Loans:
The Sakura Bank, Limited
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Address for Notices:
The Sakura Bank, Limited
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 146 -
THE TOKAI BANK, LTD.
LOS ANGELES AGENCY
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Title: Assistant General Manager
Lending Office for all Loans:
The Tokai Bank, Ltd.
Los Angeles Agency
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Address for Notices:
The Tokai Bank, Ltd.
Los Angeles Agency
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 213-689-3200
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
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- 147 -
AUSTRALIA AND NEW ZEALAND
BANKING GROUP, LIMITED
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
Lending Office for all Loans:
Australia and New Zealand
Banking Group, Limited
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Address for Notices:
Australia and New Zealand
Banking Group, Limited
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 148 -
BANK OF IRELAND, GRAND CAYMAN
BRANCH
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
Title: Vice President
Lending Office for all Loans:
Bank of Ireland, Grand Cayman
Branch
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Address for Notices:
Bank of Ireland, Grand Cayman
Branch
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 149 -
THE FIRST NATIONAL BANK OF MARYLAND
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Title: Vice President
Lending Office for all Loans:
First National Bank of Maryland
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Address for Notices:
First National Bank of Maryland
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Attention: Peg Micdzianowski
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
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- 150 -
NATIONAL CITY BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Title: Vice President
Lending Office for all Loans:
National City Bank
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Address for Notices:
National City Bank
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 151 -
UNION BANK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Title: Vice President
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Title: Vice President
Lending Office for all Loans:
Union Bank
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Address for Notices:
Union Bank
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Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 152 -
THE SWINGLINE BANK
------------------
SWINGLINE COMMITMENT THE CHASE MANHATTAN BANK
-------------------- (NATIONAL ASSOCIATION),
$100,000,000 as the Swingline Bank
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: Vice President
Lending Office for all Loans:
The Chase Manhattan Bank
(National Association)
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Address for Notices to Chase
as the Swingline Bank:
The Chase Manhattan Bank
(National Association)
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Attention: New York Agency
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------
- 153 -
THE ADMINISTRATIVE AGENT
------------------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
as Administrative Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Title: Vice President
Address for Notices to Chase
as Administrative Agent:
The Chase Manhattan Bank
(National Association)
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Attention: New York Agency
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Credit Agreement
----------------