EXHIBIT 10.21
================================================================================
CREDIT AGREEMENT
Dated as of May 28, 1998
among
Amgen Inc.,
The Borrowing Subsidiaries Herein Named,
The Banks Herein Named,
and
Citicorp USA, Inc.,
as Administrative Agent
================================================================================
Arranger:
Citicorp Securities, Inc.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS................ 1
--------------------------------
1.1 Defined Terms.............................................. 1
-------------
1.2 Use of Defined Terms....................................... 18
--------------------
1.3 Accounting Terms........................................... 18
----------------
1.4 Rounding................................................... 19
--------
1.5 Exhibits and Schedules..................................... 19
----------------------
1.6 References to "the Company and its Subsidiaries"........... 19
-----------------------------------------------
1.7 Miscellaneous Terms........................................ 19
-------------------
ARTICLE 2
LOANS AND LETTERS OF CREDIT................. 19
---------------------------
2.1 Committed Advances - General............................... 19
----------------------------
2.2 Base Rate Loans............................................ 21
---------------
2.3 Eurodollar Rate Loans...................................... 21
---------------------
2.4 Competitive Advances....................................... 21
--------------------
2.5 Voluntary Reduction of Commitment.......................... 24
---------------------------------
2.6 Letters of Credit.......................................... 24
-----------------
2.7 Administrative Agent's Right to Assume Funds
--------------------------------------------
Available for Advances..................................... 29
----------------------
2.8 Extension of Maturity Date................................. 30
--------------------------
ARTICLE 3
PAYMENTS AND FEES...................... 31
-----------------
3.1 Principal and Interest..................................... 31
----------------------
3.2 Commitment fee............................................. 33
--------------
3.3 Arranger Fee and Agency Fees............................... 33
----------------------------
3.4 LC Issuance Fee............................................ 33
---------------
3.5 LC Reimbursement Fee....................................... 33
--------------------
3.6 LC Drawing Fee............................................. 33
--------------
3.7 Capital Adequacy........................................... 33
----------------
3.8 Increased Costs............................................ 34
---------------
3.9 Late Payments.............................................. 37
-------------
3.10 Computation of Interest and Fees........................... 38
--------------------------------
3.11 Non-Banking Days........................................... 38
----------------
3.12 Manner and Treatment of Payments........................... 38
--------------------------------
3.13 Funding Sources............................................ 40
---------------
3.14 Failure to Charge Not Subsequent Waiver.................... 40
---------------------------------------
3.15 Administrative Agent's Right to Assume Payments
-----------------------------------------------
Will be Made by Borrower................................... 40
------------------------
3.16 Fee Determination Detail................................... 41
------------------------
3.17 Letter of Credit Illegality................................ 41
---------------------------
3.18 Survivability.............................................. 41
-------------
ARTICLE 4
RERESENTATIONS AND WARRANTIES.................. 42
-----------------------------
4.1 Existence and Qualification; Power; Compliance
----------------------------------------------
with Laws.................................................. 42
---------
i
4.2 Authority; Compliance With Other Agreements
-------------------------------------------
and Instruments and Government Regulations.................. 42
------------------------------------------
4.3 No Governmental Approvals Required.......................... 43
----------------------------------
4.4 Subsidiaries................................................ 43
------------
4.5 Financial Statements........................................ 43
--------------------
4.6 No Other Liabilities; No Material Adverse Effect............ 43
------------------------------------------------
4.7 Title to and Location of Property........................... 43
---------------------------------
4.8 Intangible Assets........................................... 44
-----------------
4.9 Governmental Regulation..................................... 44
-----------------------
4.10 Litigation.................................................. 44
----------
4.11 Binding Obligations......................................... 44
-------------------
4.12 No Default.................................................. 44
----------
4.13 Employee Benefit Plans...................................... 45
----------------------
4.14 Regulation U................................................ 45
------------
4.15 Disclosure.................................................. 45
----------
4.16 Tax Liability............................................... 45
-------------
4.17 Environmental Matters....................................... 46
---------------------
ARTICLE 5
AFFIRMATIVE COVENANTS
---------------------
(OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)..... 46
---------------------------------------------------
5.1 Payment of Taxes and Other Potential Liens.................. 46
------------------------------------------
5.2 Preservation of Existence................................... 47
-------------------------
5.3 Maintenance of Properties................................... 47
-------------------------
5.4 Maintenance of Insurance.................................... 47
------------------------
5.5 Compliance with Laws........................................ 47
--------------------
5.6 Visitation.................................................. 47
----------
5.7 Keeping of Records and Books of Account..................... 48
---------------------------------------
5.8 Compliance With Agreements.................................. 48
--------------------------
5.9 Use of Proceeds............................................. 48
---------------
ARTICLE 6
NEGATIVE COVENANTS...................... 48
------------------
6.1 Change in Nature of Business................................ 48
----------------------------
6.2 Mergers..................................................... 48
-------
6.3 Acquisitions of Securities of the Company................... 49
-----------------------------------------
6.4 Distributions............................................... 49
-------------
6.5 ▇▇▇▇▇; Negative Pledges; Sales and Leasebacks............... 49
---------------------------------------------
6.6 Transactions with Affiliates................................ 50
----------------------------
6.7 Interest Charge Coverage Ratio.............................. 50
------------------------------
6.8 Tangible Net Worth.......................................... 50
------------------
ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS........... 50
--------------------------------------
7.1 Financial and Business Information.......................... 50
----------------------------------
7.2 Compliance Certificates..................................... 52
-----------------------
ARTICLE 8
CONDITIONS.......................... 52
----------
8.1 Conditions to Effectiveness................................. 52
---------------------------
8.2 Any Increasing Advance and Any Letter of Credit............. 54
-----------------------------------------------
8.3 Any Advance................................................. 55
-----------
ARTICLE 9
ii
TABLE OF CONTENTS
-----------------
Page
----
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT....... 55
----------------------------------------------------
9.1 Events of Default............................................ 55
-----------------
9.2 Remedies Upon Event of Default............................... 58
------------------------------
ARTICLE 10
THE ADMINISTRATIVE AGENT..................... 61
------------------------
10.1 Appointment and Authorization................................ 61
-----------------------------
10.2 Administrative Agent and Affiliates.......................... 61
-----------------------------------
10.3 Proportionate Interest of the Banks in any
------------------------------------------
Collateral................................................... 61
----------
10.4 Banks' Credit Decisions...................................... 62
-----------------------
10.5 Action by the Administrative Agent........................... 62
----------------------------------
10.6 Liability of the Administrative Agent........................ 63
-------------------------------------
10.7 Indemnification.............................................. 64
---------------
10.8 Successor Administrative Agent............................... 65
------------------------------
10.9 No Obiligations of Borrowers................................. 66
----------------------------
10.10 Arranger..................................................... 66
--------
ARTICLE 11
COMPANY GUARANTY......................... 66
----------------
11.1 The Guaranty................................................. 66
------------
11.2 Guaranty Unconditional....................................... 67
----------------------
11.3 Discharge Only Upon Payment in Full;
------------------------------------
Reinstatement in Certain Cercumstances....................... 68
--------------------------------------
11.4 Waivers by the Company....................................... 69
----------------------
11.5 Subrogation, Etc............................................. 70
-----------------
ARTICLE 12
ADDITIONAL BORROWERS; TERMINATION OF BORROWERS........... 71
----------------------------------------------
12.1 Agreement to Participate..................................... 71
------------------------
12.2 Notice of Termination........................................ 72
---------------------
ARTICLE 13
MISCELLANEOUS.......................... 72
-------------
13.1 Cumulative Remedies; No Waiver............................... 72
------------------------------
13.2 Amendments; Consents......................................... 72
--------------------
13.3 Costs, Expenses and Taxes.................................... 73
-------------------------
13.4 Nature of Banks' Obligations................................. 74
----------------------------
13.5 Survival..................................................... 75
--------
13.6 Notices...................................................... 75
-------
13.7 Execution of Loan Documents.................................. 75
---------------------------
13.8 Binding Effect; Assignement.................................. 76
---------------------------
13.9 Setoff Rights................................................ 77
-------------
13.10 Sharing of Setoffs........................................... 77
------------------
13.11 Indemnity by the Company..................................... 78
------------------------
13.12 Nonliability of the Banks.................................... 80
-------------------------
13.13 No Third Parties Benefited................................... 81
--------------------------
13.14 Confidentiality.............................................. 81
---------------
iii
TABLE OF CONTENTS
-----------------
Page
----
13.15 Further Assurances............................................ 81
------------------
13.16 Removal of Bank............................................... 81
---------------
13.17 Integration................................................... 82
-----------
13.18 Severabiltiy of Provisions.................................... 82
--------------------------
13.19 Independent Covenants......................................... 82
---------------------
13.20 Headings...................................................... 82
--------
13.21 Time of the Essence........................................... 82
-------------------
13.22 Applicable Law................................................ 83
--------------
13.23 Consent to Jurisdiciton and Service of Process................ 83
----------------------------------------------
13.24 Waiver of Jury Trial.......................................... 83
--------------------
Exhibits
A - Agreement to Participate
B - Committed Advance Note
C - Competitive Advance Note
D - Competitive Bid
E - Competitive Bid Request
F - Compliance Certificate
G-1 - Opinion of General Counsel of the Company
G-2 - Opinion of O'Melveny & ▇▇▇▇▇, LLP
H - Request for Letter of Credit
I - Request for Loan
J - Assignment Agreement
Schedules
1.1 Borrowing Subsidiaries
1.2 Eligible Subsidiaries
2.1 Bank Commitments
4.4 Subsidiaries
4.8 Litigation
4.15 Environmental
6.5 Liens
iv
CREDIT AGREEMENT
----------------
Dated as of May 28, 1998
This CREDIT AGREEMENT ("Agreement") is dated as of May 28, 1998 and is
---------
entered into by and among Amgen Inc., a Delaware corporation (the "Company"),
-------
each of the Borrowing Subsidiaries listed on Schedule 1.1 hereto, Citicorp USA,
------------
Inc. and each other financial institution whose name is set forth on the
signature pages hereof as a Bank (collectively, the "Banks" and individually, a
-----
"Bank"), Citibank, N.A., as Issuing Bank and Citicorp USA, Inc., as
----
Administrative Agent. In consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1 Defined Terms. As used in this Agreement, the following terms shall
-------------
have the meanings set forth below:
"Adjusted Net Income" means, with regard to any fiscal period, Net Income
-------------------
for that fiscal period (a) plus any extraordinary losses sustained by the
----
Company and its Subsidiaries during that period, (b) minus any extraordinary
-----
gains realized by the Company and its Subsidiaries during that period.
"Administrative Agent" means CUSA, when acting in its capacity as the
--------------------
administrative agent under any of the Loan Documents.
"Administrative Agent's Office" means the Administrative Agent's address as
-----------------------------
set forth on the signature pages of this Agreement, or such other address as the
Administrative Agent hereafter may designate by written notice to the Company
and the Banks.
"Advance" means any Advance made or to be made by any Bank to any Borrower
-------
as provided in Article 2, and includes each Base Rate Advance, each Eurodollar
--------- --------
Rate Advance and each Competitive Advance.
"Affiliate" means, as to any Person, any other Person which directly or
---------
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (and the correlative terms,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).
1
"Agreement" means this Credit Agreement, either as originally executed or as
---------
it may from time to time be supplemented, modified, amended, restated or
extended in accordance with Section 13.2.
"Agreement to Participate" means an Agreement to Participate, substantially
------------------------
in the form of Exhibit A.
---------
"Anniversary Date" has the meaning set forth in Section 2.9.
----------------
"Applicable Percentage" means, with respect to Eurodollar Rate Loans, the
---------------------
Commitment Fee and the LC Reimbursement Fee, the per annum percentage
corresponding to the tier for the Company's Ratings as specified in the
following table:
Rate Spread and Fees
--------------------
Tier I Tier II Tier III Tier IV
------ ------- -------- -------
AA- and Aa3 A- and A3 or BBB and Baa2 BBB- or Baa3
or better better or better
Eurodollar Rate Spread .200% .250% .375% .550%
Commitment Fee .070% .080% .130% .175%
LC Reimbursement Fee .200% .250% .375% .550%
Ratings indicated are the Company's senior unsecured long-term debt ratings
by Standard & Poor's Ratings Group and ▇▇▇▇▇'▇ Investors Service, Inc.,
respectively.
"Arranger" means Citicorp Securities, Inc., in its capacity as arranger.
--------
"Assignment Agreement" means an Assignment Agreement in substantially the
--------------------
form of Exhibit J, executed by a Bank and an assignee of all or part of that
---------
Bank's interest hereunder.
"Bank" has the meaning set forth in the introductory paragraph.
----
"Banking Day" means any Monday, Tuesday, Wednesday, Thursday or Friday,
-----------
other than a day on which banks are authorized or required to be closed in
----------
California or New York.
"Base Rate", for any day, means the higher of (i) the rate of interest in
---------
effect on such day as publicly announced by Citibank, N.A. from time to time as
its base commercial lending rate (such base rate is not intended to be the
lowest rate of
2
interest charged by Citibank, N.A.) and (ii) the sum of 0.50% per annum and the
rate of interest determined by the Administrative Agent to be the average
overnight federal funds rate.
"Base Rate Advance" means an Advance made hereunder that bears interest as
-----------------
set forth in Section 3.1(b) and designated as a Base Rate Advance in accordance
with Article 2.
---------
"Base Rate Loan" means a Loan made hereunder that bears interest as set
--------------
forth in Section 3.1(b) and designated as a Base Rate Loan in accordance with
Article 2.
---------
"Borrower" means the Company and any Borrowing Subsidiary; "Borrowers" means
-------- ---------
the Company and each other Borrower, collectively.
"Borrowing Subsidiary" means any of the Subsidiaries of Borrower identified
--------------------
on Schedule 1.1 hereto and any Eligible Subsidiary that is a party to this
------------
Agreement as of the date hereof or any Eligible Subsidiary that has executed an
Agreement to Participate pursuant to Section 12.1.
"Capital Lease" means, as to any Person, a lease of any Property by that
-------------
Person as lessee that is, or should be in accordance with Financial Accounting
Standards Board Statement No. 13, recorded as a "capital lease" on the balance
sheet of that Person prepared in accordance with Generally Accepted Accounting
Principles.
"Cash" means, when used in connection with any Person, all monetary and non-
----
monetary items owned by that Person that are treated as cash in accordance with
Generally Accepted Accounting Principles, except for amounts held by, or on
------
deposit with, another Person as cash collateral or other security.
"Certificate of a Senior Officer" means a certificate signed by a Senior
-------------------------------
Officer of the Person providing the certificate.
"Closing Date" means the time and Banking Day on which the conditions set
------------
forth in Section 8.1 are satisfied, which date shall occur on or before May 31,
-----------
1998.
"Code" means the Internal Revenue Code of 1986, as amended or replaced and
----
as in effect from time to time.
"Commitment" means the aggregate commitment of the Banks (i) to make
----------
Committed Advances pursuant to Section 2.1(a) in an aggregate principal amount
-------------
up to $150,000,000 and (ii) to purchase an undivided interest in any Letters of
Credit issued pursuant to Section 2.7(a)(2), as such Commitment may be reduced
-----------------
in accordance with Section 2.5. The respective Pro Rata Shares of the Banks with
respect to the Commitments are set forth in Schedule 2.1.
------------
3
"Committed Advance" means an Advance made to any Borrower by any Bank in
-----------------
accordance with such Bank's Pro Rata Share of the Commitment pursuant to Section
-------
2.1.
---
"Committed Advance Note" means any of the promissory notes made by the
----------------------
Borrowers in favor of a Bank to evidence revolving Committed Advances made by
that Bank under the Commitment, substantially in the form of Exhibit B, as
---------
originally executed or as the same may from time to time be supplemented,
modified, amended, renewed or extended.
"Common Stock" means the $.0001 par value common stock of the Company.
------------
"Company" has the meaning set forth in the introductory paragraph.
"Competitive Advance" means an Advance made to any Borrower by any Bank not in
accordance with that Bank's Pro Rata Share of the Commitment pursuant to Section
-------
2.4.
---
"Competitive Advance Note" means any of the promissory notes made by a
------------------------
Borrower in favor of a Bank to evidence Competitive Advances made by that Bank,
substantially in the form of Exhibit C, either as originally executed or as the
---------
same may from time to time be supplemented, modified, amended, renewed or
extended.
"Competitive Bid" means a written bid to provide a Competitive Advance
---------------
substantially in the form of Exhibit D, signed by a Responsible Official of a
---------
Bank and properly completed to provide all information required to be included
therein.
"Competitive Bid Request" means (a) a written request submitted by a
-----------------------
Borrower to one or more of the Banks to provide a Competitive Bid, substantially
in the form of Exhibit E, signed by a Senior Officer and properly completed to
---------
provide all information required to be included therein or (b), at the election
of such Borrower, a telephonic request by such Borrower to the Administrative
Agent for one or more of the Banks to provide a Competitive Bid which, if so
made, shall be made by an Assistant Treasurer or Senior Officer of such Borrower
and shall include the substance of Exhibit E and shall be promptly confirmed in
---------
writing by a Senior Officer of such Borrower.
"Compliance Certificate" means a certificate in the form of Exhibit F,
---------------------- ---------
properly completed and signed by a Senior Officer of the Company.
"Consolidated Subsidiary" means, as of any date of determination and with
-----------------------
respect to any Person, any Subsidiary of that Person whose financial data is, in
accordance with Generally Accepted Accounting Principles, reflected in that
Person's consolidated financial statements.
4
"Contractual Obligation" means, as to any Person, any provision of any
----------------------
outstanding Securities issued by that Person or of any material agreement,
instrument or undertaking to which that Person is a party or by which it or any
of its Property is bound.
"Convert," "Conversion" and "Converted" each refers to a conversion of
------- ---------- ---------
Advances of one Type into Advances of another Type pursuant to Section 2.6.
"Cross-Default Amount" means, as of any date of determination, an amount
--------------------
equal to the lesser of (i) $50,000,000 or (ii) 5% of Tangible Net Worth as of
the last day of the then most recently ended Fiscal Quarter with respect to
which the Company has delivered the financial statements required by Section
-------
7.1(a) or, if the Company is delinquent in the delivery of such financial
------
statements with respect to the most recently ended Fiscal Quarter, 5% of
Tangible Net Worth as reasonably determined by the Administrative Agent.
"Current ERISA Affiliate", as applied to any Person, means (i) any
-----------------------
corporation which is a member of a controlled group of corporations within the
meaning of Section 414(b) of the Code of which that Person is a member; (ii) any
trade or business (whether or not incorporated) which is a member of a group of
trades or businesses under common control within the meaning of Section 414(c)
of the Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Code
of which that Person, any corporation described in clause (i) above or any trade
or business described in clause (ii) above is a member.
"CUSA" means Citicorp USA, Inc.
----
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
------------------
America, as amended from time to time, and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws from time to time in
effect affecting the rights of creditors generally.
"Default" means any Event of Default or any event that, with the giving of
-------
any applicable notice or passage of time specified in Section 9.1, or both,
-----------
would be an Event of Default.
"Default Rate" means the interest rate described in Section 3.9.
------------ -----------
"Designated Deposit Account" means a deposit account designated by a Borrower in
its Request for Loan submitted with respect to each Loan.
"Distribution" means, with respect to any shares of capital stock or any
------------
warrant or right to acquire shares of
5
capital stock or any other equity security issued by a Person, (a) the
retirement, redemption, purchase, or other acquisition for value (other than for
common stock of such Person) by such Person of any such security, (b) the
declaration or (without duplication) payment by such Person of any dividend in
cash or in Property (other than in common stock of such Person) on or with
respect to any such security, (c) any Investment by such Person in the holder of
any such security where such Investment is made in lieu of, or to avoid
characterization as, a Distribution described in clauses (a) or (b) above, and
(d) any other payment by such Person constituting a distribution under
applicable laws with respect to such security. Notwithstanding the foregoing,
"Distribution" shall not include a repurchase by the Company of its Common
Stock.
"dollars" or "$" means United States dollars.
------- -
"Eligible Subsidiary" means any of the wholly-owned Subsidiaries of the
-------------------
Company listed on Schedule 1.2.
------------
"Employee Benefit Plan" means any "employee benefit plan" as defined in
---------------------
Section 3(3) of ERISA which is, or was at any time, maintained or contributed to
by the Company or any of its ERISA Affiliates.
"Environmental Laws" means all plans, policies or decrees binding on the
------------------
Company and its Subsidiaries in accordance with applicable statutes, ordinances,
orders, rules or regulations and all statutes, ordinances, orders, rules or
regulations and the like, in each case, relating to (i) environmental matters,
including, without limitation, those relating to fines, injunctions, penalties,
damages, contribution, cost recovery compensation, losses or injuries resulting
from the release or threatened release of hazardous materials, (ii) the
generation, use, storage, transportation or disposal of hazardous materials, or
(iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner applicable
to the Company or any of its Subsidiaries or any of their respective properties,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S) 9601 et seq.), the Hazardous
------
Materials Transportation Act (49 U.S.C. (S) 1801 et seq.), the Resource
------
Conservation and Recovery Act (42 U.S.C. (S) 6901 et seq.), the Federal Water
------
Pollution Control Act (33 U.S.C. (S) 1251 et seq.), the Clean Air Act (42 U.S.C.
------
(S) 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. (S) 2601 et
------ --
seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. (S)136
---
et seq.), the Occupational Safety and Health Act (29 U.S.C. (S) 651 et seq.) and
------ ------
et seq.), each as amended or supplemented, and any analogous future or present
------
local, state and federal statutes and regulations promulgated pursuant thereto,
each as in effect as of the date of determination.
6
"ERISA" means the Employee Retirement Income Security Act of 1974, and any
-----
regulations issued pursuant thereto, as amended or replaced and as in effect
from time to time.
"ERISA Affiliate", as applied to any Person, means (i) any corporation
---------------
which is, or was at any time, a member of a controlled group of corporations
within the meaning of Section 414(b) of the Code of which that Person is, or was
at any time, a member; (ii) any trade or business (whether or not incorporated)
which is, or was at any time, a member of a group of trades or businesses under
common control within the meaning of Section 414(c) of the Code of which that
Person is, or was at any time, a member; and (iii) any member of an affiliated
service group within the meaning of Section 414(m) or (o) of the Code of which
that Person, any corporation described in clause (i) above or any trade or
business described in clause (ii) above is, or was at any time, a member.
"ERISA Event" means (i) a "reportable event" within the meaning of Section
-----------
4043 of ERISA and the regulations issued thereunder with respect to any Pension
Plan (excluding those for which the provision for 30-day notice to the PBGC, or
the penalty for failure to provide such notice, has been waived by regulation or
by PBGC technical update); (ii) the failure to meet the minimum funding standard
of Section 412 of the Code with respect to any Pension Plan (whether or not
waived in accordance with Section 412(d) of the Code) or the failure to make by
its due date a required installment under Section 412(m) of the Code with
respect to any Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate
such plan in a distress termination described in Section 4041(c) of ERISA; (iv)
the withdrawal by the Company or any of its ERISA Affiliates from any Pension
Plan with two or more contributing sponsors or the termination of any such
Pension Plan resulting in liability pursuant to Sections 4063 or 4064 of ERISA;
(v) the institution by the PBGC of proceedings to terminate any Pension Plan, or
the occurrence of any event or condition which might constitute grounds under
ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on the Company or any of its
ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of
the application of Section 4212(c) of ERISA; (vii) the withdrawal by the Company
or any of its ERISA Affiliates in a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there
is any potential liability therefor, or the receipt by the Company or any of its
ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to the
imposition on the Company or any of its ERISA Affiliates of fines, penalties,
taxes
7
or related charges under Chapter 43 of the Code or under Section 409 or 502(c),
(i) or (l) or 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the
assertion of a material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof,
or against Company or any of its ERISA Affiliates in connection with any such
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Code) to qualify under Section
401(a) of the Code, or the failure of any trust forming part of any Pension Plan
to qualify for exemption from taxation under Section 501(a) of the Code; or (xi)
the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Code or
pursuant to ERISA with respect to any Pension Plan.
"Eurodollar Banking Day" means any Banking Day on which dealings in dollar
----------------------
deposits are conducted by and among banks in the Eurodollar Market.
"Eurodollar Lending Office" means, as to each Bank, its office or branch so
-------------------------
designated by written notice to the Company and the Administrative Agent as its
Eurodollar Lending Office. If no Eurodollar Lending Office is designated by a
Bank, its Eurodollar Lending Office shall be its office at its address for
purposes of notices hereunder.
"Eurodollar Market" means, with respect to any Eurodollar Rate Loan, the
-----------------
London interbank offer market for U.S. dollar deposits.
"Eurodollar Obligations" means eurocurrency liabilities, as defined in
----------------------
Regulation D.
"Eurodollar Period" means, as to each Eurodollar Rate Loan, the period
-----------------
commencing on the date specified by the Borrower pursuant to Section 2.1(b) and
--------------
ending 1, 2, 3 or 6 months thereafter or, if available in the judgment of the
Reference Banks, 9 or 12 months thereafter, as specified by the Borrower in the
applicable Request for Loan; provided that:
--------
(a) The first day of any Eurodollar Period shall be a Eurodollar
Banking Day;
(b) Any Eurodollar Period that would otherwise end on a day that is
not a Eurodollar Banking Day shall be extended to the next
succeeding Eurodollar Banking Day unless such Eurodollar Banking
Day falls in another calendar month, in which case such Eurodollar
Period shall end on the next preceding Eurodollar Banking Day; and
(c) No Eurodollar Period shall extend beyond the Maturity Date.
8
"Eurodollar Rate" means, with respect to any Eurodollar Rate Loan, the
---------------
average interest rate per annum (determined solely by the Administrative Agent
and rounded upward to the next 1/100 of 1%) at which deposits in dollars are
offered to prime banks by the Reference Banks in the Eurodollar Market at or
about 10:00 a.m. London time, two (2) Eurodollar Banking Days before the first
day of the applicable Eurodollar Period in an aggregate amount approximately
equal to the amount of the Eurodollar Rate Loan to be made by such Reference
Bank and for a period of time comparable to the number of days in the applicable
Eurodollar Period; provided that, if one Reference Bank is unable to provide its
--------
offered quotation to the Administrative Agent, the Eurodollar Rate shall be
determined on the basis of the rates quoted by the remaining Reference Banks.
The determination of the Eurodollar Rate by the Administrative Agent shall be
conclusive in the absence of manifest error.
"Eurodollar Rate Advance" means an Advance made hereunder that bears
-----------------------
interest as set forth in Section 3.1(c) and designated as a Eurodollar Rate
Advance in accordance with Article 2.
---------
"Eurodollar Rate Loan" means a Loan made hereunder that bears interest as
--------------------
set forth in Section 3.1(c) and designated as a Eurodollar Rate Loan in
accordance with Article 2.
---------
"Eurodollar Reserve Percentage" means, with respect to any Eurodollar Rate
-----------------------------
Loan, the percentage applicable as of the date of determination of the
Eurodollar Rate representing the aggregate reserve requirements of any Bank
(disregarding any offsetting amounts that may be available to such Bank to
decrease such requirements to the extent that such offsetting amounts arose out
of transactions other than those contemplated by this Agreement) under
Regulation D and any other applicable Laws with respect to Eurodollar
Obligations in an aggregate amount equal to the amount of such Bank's Pro Rata
Share of such Eurodollar Rate Loan and for a time period comparable to the
number of months in the applicable Eurodollar Period. The determination by any
Bank of any applicable Eurodollar Reserve Percentage shall be presumed correct
in the absence of manifest error.
"Event of Default" shall have the meaning provided in Section 9.1.
---------------- -----------
"Existing Loan Documents" means the loan documents executed in connection
-----------------------
with that certain Credit Agreement dated as of June 23, 1995, as amended,
between the Company, the borrowing subsidiaries therein named, the lenders
therein named, Swiss Bank Corporation, New York Branch, as issuing bank and
Swiss Bank Corporation, New York Branch and Citicorp USA, Inc., as co-agents for
themselves and such lenders.
9
"Fiscal Quarter" means the fiscal quarter of the Company consisting of a
--------------
three month fiscal period ending on each March 31, June 30, September 30 and
December 31.
"Fiscal Year" means the fiscal year of the Company consisting of a twelve
-----------
month fiscal period ending on each December 31.
"Generally Accepted Accounting Principles" means, as of any date of
----------------------------------------
determination, accounting principles set forth as "generally accepted" in then
currently effective Statements of the Auditing Standards Board of the American
Institute of Certified Public Accountants, or, if no such Statements are then in
effect, that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "Generally Accepted Accounting Principles" shall be read in
----------------------------------------
each instance as if the words "consistently applied" followed immediately
--------------------
thereafter, meaning that the accounting principles applied are consistent in all
material respects (except for changes concurred in by the Company's independent
public accountants) to those applied at prior dates or for prior periods.
"Governmental Agency" means (a) any foreign, federal, state, county or
-------------------
municipal government, or political subdivision thereof, (b) any governmental or
quasi-governmental agency, authority, board, bureau, commission, department,
instrumentality or public body, (c) any court or administrative tribunal or (d)
with respect to any Person, any arbitration tribunal or other nongovernmental
authority to whose jurisdiction that Person has consented.
"Hostile Acquisition" means the acquisition of capital stock or other
-------------------
equity interests of a Person (the "Target") through a tender offer or similar
solicitation of the owners of such capital stock or other equity interests which
has not been approved (prior to such acquisition) by resolutions of the Board of
Directors of the Target or by similar action if the Target is not a corporation
and as to which such approval has not been withdrawn.
"Indebtedness" means, as to any Person, (a) all indebtedness of such Person
------------
for borrowed money, (b) that portion of the obligations of such Person under
Capital Leases which is properly recorded as a liability on a balance sheet of
that Person prepared in accordance with Generally Accepted Accounting
Principles, (c) to the extent of the outstanding Indebtedness thereunder, any
obligation of such Person that is evidenced by a promissory note or other
instrument representing an extension of credit to such Person, whether or not
for borrowed money, (d) any obligation of such Person for the deferred purchase
price of Property or services (other than trade or other accounts payable in the
----------
ordinary course of business), (e) any obligation of such Person of the nature
described in clauses (a), (b), (c) or (d)
--- --- --- ---
10
above that is secured by a Lien on assets of such Person, whether or not that
Person has assumed such obligation or whether or not such obligation is non-
recourse to the credit of such Person, but only to the extent of the lesser of
the face amount of the obligation or the fair market value of the assets so
subject to the Lien, (f) obligations of such Person arising under acceptance
facilities or under facilities for the discount of accounts receivable of such
Person, (g) any obligation of such Person to reimburse the issuer of any letter
of credit issued for the account of such Person upon which and only to the
extent a draw has been made and (h) in the case of the Company, any obligations
of the Company under a Swap Agreement. As of any date of determination, the
amount of the Company's Indebtedness pursuant to any Swap Agreement shall be
equal to 1% of the notional amount of that Swap Agreement times the number of
-----
years then remaining in the term of that Swap Agreement.
"Intangible Assets" means assets that are considered intangible assets
-----------------
under Generally Accepted Accounting Principles, including customer lists,
---------
goodwill, computer software, copyrights, trade names, trademarks, patents,
unamortized deferred charges, unamortized debt discount, capitalized research
and development costs and other intangible assets.
"Interest Charges" means, as of the last day of any fiscal period, the sum
---------------- ---
of (a) all interest, fees, charges and related expenses paid or payable (without
--
duplication) for that fiscal period to a lender in connection with borrowed
money or the deferred purchase price of assets that is treated as interest in
accordance with Generally Accepted Accounting Principles excluding interest paid
or payable (without duplication) for that fiscal period on any intercompany
loans, plus (b) the portion of rent paid or payable (without duplication) for
----
that fiscal period under Capital Leases that should be treated as interest in
accordance with Generally Accepted Accounting Principles.
"Interest Charge Coverage Ratio" means, as of the last day of any Fiscal
------------------------------
Quarter, the ratio of (a) Adjusted Net Income for the fiscal period consisting
of that Fiscal Quarter and the three immediately preceding Fiscal Quarters plus
----
(i) Interest Charges of the Company and its Consolidated Subsidiaries for such
fiscal period, plus (ii) depreciation and amortization expense of the Company
----
and its Consolidated Subsidiaries for such fiscal period, plus (iii) provisions
----
for taxes based on income of the Company and its Consolidated Subsidiaries for
such fiscal period, to (b) Interest Charges of the Company and its Consolidated
Subsidiaries for such fiscal period.
"Interest Period" means with respect to any Eurodollar Rate Loan, the
---------------
related Eurodollar Period.
"Investment" means, when used in connection with any Person, any investment
----------
by or of that Person, whether by means of purchase or other acquisition of
capital stock or other
11
Securities of any other Person or by means of loan, advance, capital
contribution, guaranty or other debt or equity participation or interest, or
otherwise, in any other Person, including any partnership and joint venture
---------
interests of such Person in any other Person. "Investment" shall include (a) a
repurchase by the Company of its Common Stock, (b) all payments by the Company
or any Subsidiary to any Person as a buyout of royalty obligations to that
Person and (c) all acquisitions by the Company or any Subsidiary of technology
and/or distribution rights. The amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases or decreases in
the value of such Investment.
"Issuing Bank" means Citibank, N.A.
------------
"Laws" means, collectively, all foreign, federal, state and local statutes,
----
treaties, rules, regulations, ordinances, codes and administrative or
controlling precedents of any Governmental Agency.
"LC Issuance Fee" means a fee payable to the Issuing Bank as provided in
---------------
Section 3.4.
-----------
"LC Reimbursement Fee" means a fee payable to the Administrative Agent, for
--------------------
the pro rata benefit of the Banks, as provided in Section 3.5.
-----------
"Letters of Credit" means any letters of credit issued by the Issuing Bank
-----------------
pursuant to Section 2.7(a), either as originally executed or as the same may
from time to time be supplemented, modified, reviewed, extended or supplanted.
"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment
----
for security, security interest, encumbrance, lien or charge of any kind,
whether voluntarily incurred or arising by operation of Law or otherwise,
affecting any Property, including any agreement to grant any of the foregoing,
---------
any conditional sale or other title retention agreement, any lease in the nature
of a security interest, and/or the filing of or agreement to give any financing
statement (other than a precautionary financing statement with respect to a
----------
lease that is not in the nature of a security interest) under the Uniform
Commercial Code or comparable Law of any jurisdiction with respect to any
Property.
"Loan" means any group of Committed Advances made at any one time by the
----
Banks pursuant to Article 2.
---------
"Loan Documents" means, collectively, this Agreement, the Notes, any
--------------
Request for Loan, any Agreement to Participate, any Letter of Credit, any
Request for Letter of Credit, any Competitive Bid Request and any other
certificates or agreements heretofore or hereafter executed by a Senior Officer
of any Borrower in connection with this Agreement and delivered by any
12
Borrower to the Administrative Agent, an Issuing Bank or any Bank, in each case
either as originally executed or as the same may from time to time be
supplemented, modified, amended, restated, extended or supplanted.
"Majority Banks" means, as of any date of determination, Banks whose
--------------
aggregate Pro Rata Shares are at least 51% of the Commitment then in effect or
if the Commitment is not then in effect, Banks to which at least 51% of the
aggregate Total Outstandings is owed.
"Material Adverse Effect" means a circumstance or set of circumstances or
-----------------------
events affecting the business, operations or condition (financial or otherwise)
of the Company and its Subsidiaries, taken as a whole that have a material
adverse effect, individually or in the aggregate, upon the ability (i) of the
Company and its Subsidiaries, taken as a whole, to perform under the Loan
Documents or (ii) of any of the Banks to enforce, the Obligations under the Loan
Documents.
"Maturity Date" means May 28, 2003, unless otherwise extended pursuant to
-------------
Section 2.9.
"Multiemployer Plan" means a "multiemployer plan", as defined in Section
-----------------
3(37) of ERISA, to which the Company or any of its ERISA Affiliates is
contributing, or ever has contributed, or to which the Company or any of its
ERISA Affiliates has, or ever has had, an obligation to contribute.
"Net Income" means, with respect to any fiscal period, the consolidated net
----------
income of the Company and its Subsidiaries for that period, determined in
accordance with Generally Accepted Accounting Principles; provided that there
--------
shall be excluded from Net Income (i) any income or loss of a Person accrued
prior to the date upon which such Person, or the assets of such Person, was
acquired by or merged into the Company or any of its Subsidiaries; (ii) any
income of a Subsidiary of the Company to the extent that declaration or payment
of dividends or other Distributions by that Subsidiary is not permitted by any
Contractual Obligation or Requirement of Law applicable to that Subsidiary;
(iii) any charges taken in respect of payments to any Person as a buyout of
royalty obligations to that Person; and (iv) any charges taken in connection
with the acquisition of technology and/or distribution rights.
"Notes" means, collectively, the Committed Advance Notes and the
-----
Competitive Advance Notes.
"Notice of Conversion/Continuation" has the meaning specified in Section
---------------------------------
2.6.
"Obligations" means all present and future obligations of every kind or
-----------
nature of the Borrowers at any time and from time to time owed to the Arranger,
the Administrative Agent, the
13
Issuing Bank or the Banks or any one or more of them under any one or more of
the Loan Documents, whether due or to become due, matured or unmatured,
liquidated or unliquidated, or contingent or noncontingent, including
---------
obligations of performance as well as obligations of payment, and including
---------
interest that accrues after the commencement of any proceeding under any Debtor
Relief Law by or against the Company or any Subsidiary of the Company.
"Other Taxes" means any present or future stamp or documentary taxes and
-----------
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Loan Document or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any other Loan Document.
"Pension Plan" means any Employee Benefit Plan other than a Multiemployer
------------
Plan, that is subject to Section 412 of the Internal Revenue Code or Section 302
of ERISA.
"Permitted Encumbrances" means:
----------------------
(a) inchoate Liens incident to construction or maintenance of real
property, or Liens incident to construction or maintenance of real property, now
or hereafter filed of record for which adequate reserves have been set aside and
which are being contested in good faith by appropriate proceedings and have not
proceeded to judgment, provided that, by reason of nonpayment of the obligations
--------
secured by such Liens, no such real property is subject to a material risk of
loss or forfeiture;
(b) Liens for taxes and assessments on real property which are not yet
past due, or Liens for taxes and assessments on real property for which adequate
reserves have been set aside and are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, provided that, by
--------
reason of non-payment of the obligations secured by such Liens, no such real
property is subject to a material risk of loss or forfeiture;
(c) easements, exceptions, reservations, or other agreements granted or
entered into after the date hereof for the purpose of pipelines, conduits,
cables, wire communication lines, power lines and substations, streets, trails,
walkways, drainage, irrigation, water, and sewerage purposes, dikes, canals,
ditches, the removal of oil, gas, coal, or other minerals, and other like
purposes affecting real property which in the aggregate do not materially burden
or impair the fair market value or use of such real property for the purposes
for which it is or may reasonably be expected to be held;
(d) rights reserved to or vested in any Governmental Agency by Law to
control or regulate, or obligations or duties under Law to any Governmental
Agency with respect to, the use of any real property;
14
(e) rights reserved to or vested in any Governmental Agency by Law to
control or regulate, or obligations or duties under Law to any Governmental
Agency with respect to, any right, power, franchise, grant, license, or permit;
(f) present or future zoning laws and ordinances or other laws and
ordinances restricting the occupancy, use, or enjoyment of real property;
(g) statutory Liens, other than those described in clauses (a) or (b)
above, arising in the ordinary course of business with respect to obligations
which are not delinquent or are being contested in good faith by appropriate
proceedings, provided that, if delinquent, adequate reserves have been set aside
--------
with respect thereto and, by reason of nonpayment, no Property is subject to a
material risk of loss or forfeiture;
(h) Liens consisting of pledges or deposits to secure obligations under
workers' compensation laws or similar legislation, including Liens of
judgments thereunder which are not currently dischargeable;
(i) Liens consisting of pledges or deposits of Property to secure
performance in connection with operating leases made in the ordinary course of
business to which the Company or a Subsidiary is a party as lessee, provided the
--------
aggregate value of all such pledges and deposits in connection with any such
lease does not at any time exceed 16-2/3% of the annual fixed rentals payable
under such lease;
(j) Liens consisting of deposits of Property to secure statutory
obligations of the Company or a Subsidiary of the Company in the ordinary course
of its business;
(k) Liens consisting of deposits of Property to secure (or in lieu of)
surety, appeal or customs bonds in proceedings to which the Company or a
Subsidiary of the Company is a party in the ordinary course of its business, but
not in excess of $10,000,000; and
(l) purchase money security interests or mortgages taken or retained by a
seller of collateral to secure all or part of its purchase price.
"Person" means any entity, whether an individual, trustee, corporation,
------
general partnership, limited partnership, joint stock company, trust, estate,
unincorporated organization, business association, tribe, firm, joint venture,
Governmental Agency, or otherwise.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor
----
thereto).
15
"Property" means any interest in any kind of property or asset, whether
--------
real, personal or mixed, or tangible or intangible.
"Pro Rata Share" means, with respect to each Bank, with respect to the
--------------
Commitment, and any Loan made under any portion of the Commitment, the
percentage set forth opposite the name of that Bank and that portion of the
Commitment on Schedule 2.1 as modified from time to time.
------------
"Reference Banks" means Citibank, N.A., Bank of America NT&SA and ABN Amro
---------------
Bank N.V.
"Regulation D" means Regulation D, as at any time amended, of the Board of
------------
Governors of the Federal Reserve System, or any other regulation in substance
substituted therefor.
"Regulation U" means Regulation U, as at any time amended, of the Board of
------------
Governors of the Federal Reserve System, or any other regulation in substance
substituted therefor.
"Request for Letter of Credit" means a written request for a Letter of
----------------------------
Credit substantially in the form of Exhibit H, together with the standard form
---------
of application for letter of credit used by the Issuing Bank, signed by a Senior
Officer of the Borrower and properly completed to provide all information
required to be provided therein.
"Request for Loan" means a written request for a Loan substantially in the
----------------
form of Exhibit I, signed by a Senior Officer of the Borrower and properly
---------
completed to provide all information required to be included therein.
"Requirement of Law" means, as to any Person, the articles or certificate
------------------
of incorporation and by-laws or other organizational or governing documents of
such Person, and any Law, or judgment, award, decree, writ or determination of a
Governmental Agency, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is subject.
"Responsible Official" means (a) when used with reference to a Person
--------------------
other than an individual, any corporate officer of such Person, general partner
of such Person, corporate officer of a corporate general partner of such Person,
or corporate officer of a corporate general partner of a partnership that is a
general partner of such Person, or any other responsible official thereof duly
acting on behalf thereof, and (b) when used with reference to a Person who is an
individual, such Person. Any document or certificate hereunder that is signed or
executed by a Responsible Official of a Person shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other action
on the part of that Person.
16
"Securities" means any capital stock, share, voting trust certificate,
----------
bond, debenture, note or other evidence of indebtedness, limited partnership
interest, or any warrant, option or other right to purchase or acquire any of
the foregoing.
"Senior Officer" means the (a) chief executive officer, (b) chief
--------------
operating officer, (c) chief financial officer, (d) corporate controller, or (e)
treasurer, in each case whatever the title nomenclature may be, of the Person
designated.
"Shareholders' Equity" means, as of any date of determination,
--------------------
shareholders' equity as of that date determined in accordance with Generally
Accepted Accounting Principles; provided that there shall be excluded from
--------
Shareholders' Equity any amount attributable to capital stock that is, directly
or indirectly, required to be redeemed or repurchased by the issuer thereof at a
specified date or upon the occurrence of specified events or at the election of
the holder thereof.
"Subsidiary" means, as of any date of determination and with respect to
----------
any Person, any corporation, partnership or joint venture, whether now existing
or hereafter organized or acquired: (a) in the case of a corporation, of which a
majority of the securities having ordinary voting power for the election of
directors or other governing body (other than securities having such power only
by reason of the happening of a contingency) are at the time beneficially owned
by such Person and/or one or more Subsidiaries of such Person, or (b) in the
case of a partnership or joint venture, of which such Person or a Subsidiary of
such Person is a general partner or joint venturer or of which a majority of the
partnership or other ownership interests are at the time beneficially owned by
such Person and/or one or more of its Subsidiaries, excluding any partnership or
joint venture over which the Person or Subsidiary of such Person does not
exercise actual control.
"Swap Agreement" means a written agreement between the Company and one or
--------------
more financial institutions providing for "swap", "collar" or other interest
rate protection (other than "caps") with respect to any Indebtedness.
"Tangible Net Worth" means, as of any date of determination, the
------------------
Shareholders' Equity of the Company and its Consolidated Subsidiaries on that
date, minus the book value of any Intangible Assets of the Company and its
-----
Consolidated Subsidiaries on that date.
"Taxes" means any and all present and future taxes, duties, levies,
-----
imposts, deductions, charges or withholdings with respect to any payment by any
Borrower pursuant to this Agreement or under any other Loan Document, and all
liabilities with respect thereto, excluding (i) taxes imposed on the net income
of any Bank or the Administrative Agent, and franchise or similar
17
taxes imposed on any Bank or the Administrative Agent, by a jurisdiction under
the laws of which such Bank or the Administrative Agent, as the case may be, is
organized or in which its principal executive office is located or, in the case
of each Bank, in which its applicable lending office is located and (ii) in the
case of each Bank, any United States withholding tax imposed on such payments
but only to the extent that such Bank is subject to United States withholding
tax at the time such Bank first becomes a party to this Agreement.
"Total Outstandings" means, as of any date of determination, the sum on
------------------ ---
that date of (a) the aggregate principal Indebtedness evidenced by the Notes,
plus (b) the aggregate then undrawn portion of Letters of Credit which are
----
issued and outstanding, plus (c) the aggregate unreimbursed drawings under
----
Letters of Credit.
"Type" when used with respect to any Loan or Advance, means the
----
designation of whether such Loan or Advance is a Base Rate Loan or Advance, a
Eurodollar Rate Loan or Advance or a Competitive Advance.
"Unused Portion" means the Commitment, less Total Outstandings as to the
-------------- ----
Commitment.
1.2 Use of Defined Terms. Any defined term used in the plural shall refer
--------------------
to all members of the relevant class, and any defined term used in the singular
shall refer to any one or more of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not specifically defined in
----------------
this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
Generally Accepted Accounting Principles applied on a consistent basis, except
------
as otherwise specifically prescribed herein and except for changes concurred in
by the Company's independent public accountants. In the event that Generally
Accepted Accounting Principles change during the term of this Agreement such
that the financial covenants contained in Sections 6.7 and 6.8 would then be
------------ ---
calculated in a different manner or with different components, (a) the Borrowers
and the Banks agree to negotiate to amend this Agreement in such respects as are
necessary to conform those covenants as criteria for evaluating the Company's
financial condition to substantially the same criteria as were effective prior
to such change in Generally Accepted Accounting Principles and (b) the Company
shall be deemed to be in compliance with the financial covenants contained in
such Sections during the 60 day period following any such change in Generally
Accepted Accounting Principles if and to the extent that the Company would have
been in compliance therewith under Generally Accepted Accounting Principles as
in effect immediately prior to such change.
18
1.4 Rounding. Any financial ratios required to be maintained by the
--------
Company pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this Agreement,
----------------------
either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 References to "the Company and its Subsidiaries". Any reference herein
-----------------------------------------------
to "the Company and its Subsidiaries" or the like shall refer solely to the
Company during such times, if any, as the Company shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive; the term "and" is
-------------------
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
ARTICLE 2
LOANS AND LETTERS OF CREDIT
---------------------------
2.1 Committed Advances - General.
----------------------------
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through the Maturity
Date, each Bank shall, according to its Pro Rata Share of the Commitment,
make Committed Advances to the Borrowers under the Commitment in such amounts
as the Borrowers may request that do not exceed in the aggregate at any one
time outstanding the amount of that Bank's Pro Rata Share of the Commitment;
provided that, giving effect to the Loan of which such Advance is a part, (i)
--------
the Total Outstandings shall not exceed the Commitment and (ii) the sum of
all Committed Advances then outstanding plus the sum of all Competitive
----
Advances then outstanding plus the face amount of all Letters of Credit then
----
outstanding plus the sum of all unreimbursed drawings under Letters of Credit
----
shall not exceed the Commitment. Subject to the limitations set forth herein,
the Borrowers may borrow and repay under the Commitment without premium or
penalty.
(b) Subject to the next sentence, each Loan under this Section 2.1
-----------
shall be made pursuant to a Request for Loan
19
which shall specify the requested (i) date of such Loan, (ii) type of Loan,
(iii) amount of such Loan and (iv) Interest Period for such Loan. Unless the
Administrative Agent has notified, in its sole and absolute discretion, the
Borrowers to the contrary, a Loan may be requested by telephone by an
Assistant Treasurer or Senior Officer of the Borrower, in which case the
Borrower shall promptly confirm such request by transmitting a telecopy of,
or at the Administrative Agent's request by mailing, a Request for Loan
executed by a Senior Officer of such Borrower conforming to the preceding
sentence to the Administrative Agent.
(c) Promptly following receipt of a Request for Loan (or the receipt
of a substitute request permitted under the second sentence of Section
-------
2.1(b)), the Administrative Agent shall notify each Bank by telephone (so
-----
long as such notce by telephone is followed by a notice in writing) or
telecopier (the method of notice shall be at the Administrative Agent's
option) of the date and type of the Loan, the applicable Interest Period and
the amount of that Bank's Pro Rata Share of the Loan. Not later than 2:00
p.m., New York time, on the date specified for any Loan subject to the
provisions of Sections 2.2 and 2.3, each Bank shall make its Pro Rata Share
------------ ---
of the Loan in immediately available funds available to the Administrative
Agent at the Administrative Agent's Office. Upon fulfillment of the
applicable conditions set forth in Article 8 and subject to the provisions of
---------
Sections 2.2 and 2.3, all Advances shall be credited in immediately available
------------ ---
funds to the Designated Deposit Account.
(d) Each Loan under the Commitment shall be in a minimum amount of
$2,000,000 and multiples of $1,000,000 in excess of that amount.
(e) The Committed Advances made by each Bank under its Pro Rata Share of
the Commitment shall be evidenced by that Bank's Committed Advance Note in
the form set forth as Exhibit B.
---------
(f) A Request for Loan shall be irrevocable upon the Administrative
Agent's first notification thereof.
2.2 Base Rate Loans. Each request by a Borrower for a Base Rate Loan shall
---------------
be made pursuant to a Request for Loan (or telephonic request for Loan referred
to in the second sentence of Section 2.1(b), if applicable) received by the
-------------
Administrative Agent, at the Administrative Agent's Office, not later than 11:00
a.m., New York time, on the date of a proposed Base Rate Advance. All Loans
shall constitute Base Rate Loans unless properly designated as Eurodollar Rate
Loans pursuant to Section 2.3. Each Base Rate Loan shall consist of Committed
-----------
Advances.
20
2.3 Eurodollar Rate Loans.
---------------------
(a) Each request by a Borrower for a Eurodollar Rate Loan shall be
made pursuant to a Request for Loan (or telephonic request for Loan referred to
in the second sentence of Section 2.1(b), if applicable) received by the
--------------
Administrative Agent, at the Administrative Agent's Office, not later than 1:00
p.m., New York time, at least three (3) Eurodollar Banking Days before the first
day of the applicable Eurodollar Period.
(b) On the second Eurodollar Banking Day before the first day of the
applicable Eurodollar Period, the Administrative Agent shall determine the
applicable Eurodollar Rate (which determination shall be conclusive in the
absence of manifest error) and prior to 1:00 p.m., New York time on that same
day shall give notice of the same to the Borrower and the Banks by telephone or
telecopier (the method of notice shall be at the Administrative Agent's option).
(c) Unless all of the Banks otherwise consent, no Eurodollar Rate Loan
may be requested during the continuance of an Event of Default.
(d) Each Eurodollar Rate Loan shall consist of Committed Advances.
(e) Prior to the submission of a Request for Loan with respect to a
Eurodollar Rate Loan, any Borrower may request the Administrative Agent to
provide a non-binding estimate of the Eurodollar Rate that would then apply in
the event the Borrower submitted a Request for Loan.
2.4 Competitive Advances.
--------------------
(a) Subject to the terms and conditions hereof, at any time and from
time to time from the Closing Date through the day that is thirty-one (31) days
prior to the Maturity Date, each Bank may in its sole and absolute discretion
make Competitive Advances to a Borrower pursuant to this Section in such
principal amounts as the Borrower may request pursuant to a Competitive Bid
Request, provided that, after giving effect to the making of each such
--------
Competitive Advance, (i) the aggregate principal amount of the Indebtedness
evidenced by the Competitive Advance Notes and the Committed Advance Notes shall
not exceed the Commitment, (ii) the sum of all Committed Advances then
outstanding plus the sum of all Competitive Advances then outstanding plus the
---- ----
face amount of all Letters of Credit then outstanding plus the sum of all
----
unreimbursed drawings under Letters of Credit shall not exceed the Commitment,
and (iii) Total Outstandings shall not exceed the Commitment. Any Bank may
submit a Competitive Bid in an amount greater than, less
21
than or equal to its respective Pro Rata Share of the Commitment, up to the
amount of the Competitive Bid Request.
(b) Each Borrower shall request Competitive Advances by submitting a
Competitive Bid Request to the Administrative Agent by telephone or telecopier,
to be received by the Administrative Agent not later than 12:00 noon, New York
time, one Banking Day prior to the date of the proposed Competitive Advance,
which Competitive Bid Request shall specify the relevant date, amount and
maturity for the proposed Competitive Advance and shall otherwise be completed
to the satisfaction of the Administrative Agent.
(c) Each Competitive Bid Request shall be made for a Competitive
Advance with a maturity of not less than seven (7) nor more than 180 days. No
Competitive Bid Request may be made for a Competitive Advance which has a
maturity date which is later than the Banking Day immediately preceding the
Maturity Date.
(d) Each Competitive Bid Request shall be in a minimum amount of
$2,000,000 and multiples of $1,000,000 in excess thereof.
(e) Immediately following receipt of a Competitive Bid Request (or a
telephonic request in accordance with Section 2.4(b)), the Administrative Agent
--------------
shall notify each Bank by telephone or telecopier (the method of notice shall be
at the Administrative Agent's option) of the relevant date, amount and maturity
and of the other relevant terms of the requested Competitive Advance.
(f) Each Bank receiving a Competitive Bid Request may, in its sole and
absolute discretion, make or not make a Competitive Bid responsive to the
Competitive Bid Request. For purposes of this paragraph, a Competitive Bid shall
be deemed responsive if it offers a Competitive Advance which is of an amount
which is less than or equal to that specified in the Competitive Bid Request and
if it comports in all other respects to the Competitive Bid Request. If the Bank
which is then Administrative Agent determines, in its sole discretion, to submit
a Competitive Bid with respect to a Competitive Bid Request, it shall submit its
Competitive Bid to the Borrower by telecopier not later than 10:15 a.m., New
York time, on the Banking Day of the proposed Competitive Advance. Each other
Competitive Bid shall be submitted to the Administrative Agent via telecopier
not later than 10:45 a.m., New York time, on the date of the requested
Competitive Advance, and the Administrative Agent shall promptly thereafter
notify the Borrower by telephone or telecopier (the method of notification shall
be at the Administrative Agent's option) of the Competitive Bids. The Borrower
shall maintain the confidentiality of any Competitive Bid made by the
22
Administrative Agent or any Bank pending receipt by the Borrower of all other
Competitive Bids.
(g) Each Competitive Bid shall specify the stated fixed interest rate
(on the basis of a year of 360 days times the actual number of days elapsed). A
Competitive Bid once submitted to a Borrower shall be irrevocable prior to the
time that the Borrower is required to accept such Competitive Bid as described
in clause (h) below.
----------
(h) A Borrower may accept or reject any Competitive Bid in its sole
and absolute discretion at any time prior to 11:15 a.m., New York time, on the
Banking Day of the proposed Competitive Advance; provided that (a) acceptance of
--------
a Competitive Bid shall be by telephone, promptly confirmed by the Borrower in
writing by telecopier communicated to a Responsible Official of the
Administrative Agent, (which shall immediately notify the relevant Bank as
provided in clause (i) below) (b) the Borrower may not accept any Competitive
---------
Bid which quotes an interest rate which is higher than a rejected Competitive
Bid unless the rejected Competitive Bid is for an amount which is less than that
------
specified in the applicable Competitive Bid Request and (c) without the consent
of the Bank offering a Competitive Bid, the Borrower may not accept any
fractional portion of the amount specified in that Competitive Bid.
(i) A Bank whose Competitive Bid has been accepted by a Borrower shall
make the Competitive Advance in accordance with the Competitive Bid Request and
with its Competitive Bid, subject to the applicable conditions set forth in this
Agreement and during the period when such Competitive Advance is outstanding,
the Pro Rata Share of the Commitment of each Bank shall be deemed reduced by its
Pro Rata Share of the principal amount of each such Competitive Advance.
(j) Promptly upon acceptance of a Competitive Bid, the Administrative
Agent shall notify each relevant Bank by telephone or telecopier of the
acceptance of that Bank's Competitive Bid and shall promptly notify each Bank
whose Competitive Bid is not accepted that its Competitive Bid has not been
accepted. Not later than 2:00 p.m., New York time, on the date of the
Competitive Advance, and upon fulfillment of the applicable conditions set forth
in Article 8, the Bank shall fund the Competitive Advance in immediately
---------
available funds to the Administrative Agent at the Administrative Agent's
Office. Upon receipt of such funds, the Administrative Agent shall promptly
credit the amount of the Competitive Advance to the Designated Deposit Account.
(k) Unless all of the Banks otherwise consent, (i) no Competitive
Advances may be requested during the continuance of an Event of Default, and
(ii) not more than twelve (12) Competitive Advances may be outstanding at any
time.
23
(l) The Competitive Advances made by each Bank shall be evidenced by
that Bank's Competitive Advance Note.
2.5 Voluntary Reduction of Commitment. The Company shall have the
---------------------------------
right, at any time and from time to time, without penalty or charge, upon at
least two (2) days' prior written notice to the Administrative Agent, to
voluntarily reduce, permanently and irrevocably, in a minimum amount of
$5,000,000 and multiples of $1,000,000 in excess thereof, or to terminate, all
or a portion of the then Unused Portion of the Commitment; provided that any
--------
such reduction or termination shall be accompanied by payment of all accrued and
unpaid commitment fees with respect to the portion of the Commitment being
reduced or terminated.
2.6 Voluntary Conversion or Continuation of Committed Advances.
----------------------------------------------------------
(a) The Borrower may on any Banking Day upon notice given to the
Administrative Agent not later than 12:00 noon (New York City time) on the
third Eurodollar Banking Day prior to the date of the proposed Conversion
or continuance (a "Notice of Conversion/Continuation") and subject to the
---------------------------------
provisions of Section 2.3, (1) Convert all or any portion of Committed
Advances of one Type into Advances of another Type and (2) upon the
expiration of any Interest Period applicable to Committed Advances which
are Eurodollar Rate Advances, continue all (or, subject to Section 2.3,
any portion of) such Advances as Eurodollar Rate Advances and the
succeeding Interest Period(s) of such continued Advances shall commence on
the last day of the Interest Period of the Advances to be continued;
provided, however, that any Conversion of any Eurodollar Rate Advances
-------- -------
into Base Rate Advances shall be made on, and only on, the last day of an
Interest Period for such Eurodollar Rate Advances. Each such Notice of
Conversion/Continuation shall, within the restrictions specified above,
specify (i) the date of such continuation or Conversion, (ii) the
Committed Advances (or, subject to Section 2.3, any portion thereof) to be
continued or Converted, (iii) if such continuation is of, or such
Conversion is into, Eurodollar Rate Advances, the duration of the Interest
Period of each such Committed Advance, and (iv) in the case of a
continuation of or a Conversion into a Eurodollar Rate Advance, that no
Event of Default has occurred and is continuing. Each Conversion or
continuation shall be in a minimum amount of $2,000,000 and multiples of
$1,000,000.
(b) If upon the expiration of the then existing Interest Period
applicable to any Committed Advance which is a Eurodollar Rate Advance,
the Borrower shall not have delivered a Notice of Conversion/Continuation
in accordance with this Section 2.6, then such Advance shall upon such
24
expiration automatically be Converted to a Base Rate Advance.
(c) After the occurrence of and during the continuation of an Event of
Default, the Borrower may not elect to have an Advance be made or
continued as, or Converted into, a Eurodollar Rate Advance after the
expiration of any Interest Period then in effect for that Advance.
2.7 Letters of Credit.
-----------------
(a) Subject to the terms and conditions hereof, at any time and from
time to time from the Closing Date through the date that is thirty (30)
days before the Maturity Date, the Issuing Bank shall issue such Letters
of Credit as a Borrower may request by delivering a Request for Letters of
Credit to the Issuing Bank; provided that, giving effect to such Letter of
--------
Credit, (i) the aggregate effective face amounts of all outstanding
Letters of Credit will not exceed $25,000,000, (ii) the sum of all
Committed Advances then outstanding plus the sum of all Competitive
----
Advances then outstanding plus the face amount of all Letters of Credit
----
then outstanding plus the sum of all unreimbursed drawings under Letters
----
of Credit shall not exceed the Commitment, and (iii) Total Outstandings
will not exceed the Commitment. Letters of Credit issued under the
Commitment may be issued for terms up to five (5) years from the date of
issuance but in no event shall the term of any such Letter of Credit
extend beyond the Maturity Date. Each Letter of Credit shall be in a
minimum amount of $500,000, unless otherwise consented to by the Issuing
Bank. The issuance of any Letter of Credit shall constitute usage of the
Commitment. Subject to the limitations set forth herein, the Borrowers may
request Letters of Credit, reimburse drawings under Letters of Credit and
request further Letters of Credit without premium or penalty.
(b) The Issuing Bank is under no obligation to Issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental Agency or
arbitrator shall by its terms purport to enjoin or restrain the Issuing
Bank from issuing such Letter of Credit, or any Requirement of Law
applicable to the Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Agency with jurisdiction
over the Issuing Bank shall prohibit, or request that the Issuing Bank
refrain from, the issuance of Letters of Credit generally or such Letter
of Credit in particular;
25
(ii) the Issuing Bank has received written notice from the Majority
Banks, the Administrative Agent or the Company on or prior to the Banking
Day prior to the requested date of issuance of such Letter of Credit, that
one or more of the applicable conditions contained in Section 8.2 is not
then satisfied; or
(iii) any requested Letter of Credit is not in form acceptable to the
Issuing Bank, or the issuance of a Letter of Credit shall violate any
generally applicable policies of the Issuing Bank.
(c) Each Request for Letter of Credit shall be submitted to the
Issuing Bank at least three (3) Banking Days prior to the date when the issuance
of a Letter of Credit is requested. Upon issuance of a Letter of Credit, the
Issuing Bank shall promptly notify the Banks of the amount and terms thereof.
Any Letter of Credit issued shall conform with the applicable Issuing Bank's
policies regarding form and substance.
(d) Upon the issuance of a Letter of Credit, each Bank shall be deemed
to have irrevocably purchased from the Issuing Bank, without recourse to or
warranty from the Issuing Bank, a pro rata undivided participation in the Letter
of Credit, in an amount equal to that Bank's Pro Rata Share of the Commitment.
Without limiting the scope and nature of each Bank's participation in any Letter
of Credit, to the extent that the Issuing Bank has not been reimbursed by the
Borrower, in accordance with Section 2.7(e), for any payment made by the Issuing
--------------
Bank under any Letter of Credit, each Bank shall reimburse the Issuing Bank
promptly upon demand for the amount of such payment in accordance with its Pro
Rata Share of the Commitment, as the case may be. The obligation of each Bank to
so reimburse the Issuing Bank shall be absolute and unconditional and shall not
be affected by the occurrence of an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Bank for the amount of any
payment made by the Issuing Bank under any Letter of Credit together with
interest as hereinafter provided.
(e) After any drawing on a Letter of Credit, the Issuing Bank shall
notify the Borrower and the Administrative Agent by telephone or telecopier of
such drawing by 2:00 p.m., New York time, on the date such payment is to be made
and the Borrower shall reimburse the Issuing Bank, in immediately available
funds for any amount paid or to be paid by the Issuing Bank under such Letter of
Credit by 4:00 p.m., New York time on the date of such notice.
26
(f) If the Borrower fails to make the payment required by Section 2.7(e),
-------------
the Administrative Agent shall notify the Banks by telephone or telecopier (the
method of notification shall be at the Administrative Agent's option) of the
unreimbursed amount of such payment. Each Bank irrevocably and unconditionally
agrees (irrespective of the occurrence of an Event of Default or any other
circumstance) that it shall make available to the Administrative Agent (for the
account of the applicable Issuing Bank) an amount equal to its respective
participation in same day funds, at the Administrative Agent's Office, not later
than the close of business (New York time) on the date notified by the
Administrative Agent. In the event that any Bank fails to make available to the
Administrative Agent the amount of such Bank's participation in such Letter of
Credit as provided above, the Issuing Bank (through the Administrative Agent)
shall be entitled to recover such amount on demand from such Bank together with
interest thereon, for each day from the date of such payment until the date such
amount is paid to the Issuing Bank, at the rate per annum equal to the Base Rate
plus 1%; provided that if such failure is solely the result of an administrative
---- --------
error (which determination shall be made by the Administrative Agent in its sole
discretion) or is solely the result of the Bank receiving notice too late in the
day to make payment to the Administrative Agent on that day, then the interest
rate for the first day of such delay shall be the overnight federal funds rate.
Any amount made available by a Bank to the Administrative Agent as such Bank's
participation in such Letter of Credit shall constitute a demand loan to the
Borrower bearing interest at a rate per annum equal to (i) from the date of any
payment made by the Issuing Bank through the date ten days after such payment,
the Base Rate, and (ii) thereafter, the Base Rate plus 2%; provided, that if a
---- --------
Bank is prevented from making such demand loans by the provisions of the United
States Bankruptcy Code or otherwise, the amount so paid to the Issuing Bank by
such Bank shall constitute a funding and purchase by it of a participation in
such Letter of Credit disbursement by the Issuing Bank and all obligations of
the Borrower with respect thereto, including interest thereon to the extent
accruing from the date of such purchase. The Administrative Agent shall promptly
pay to the Issuing Bank all funds paid by the Banks to reimburse the Issuing
Bank for the payment made by it under the Letter of Credit.
(g) The issuance of any supplement, modification, amendment, renewal,
or extension to or of any Letter of Credit shall be treated for the purposes of
Article 8 the same as the issuance of a new Letter of Credit.
(h) If, for any reason, a Bank fails to pay its liability on a Letter
of Credit in accordance with the provisions of Section 2.7(f), then the Issuing
-------------
Bank shall be
27
automatically subrogated to the right of such defaulting Bank to any prepayment,
in full, of any loan created by virtue of a drawing on such Letter of Credit, or
such defaulting Bank's right to any reimbursement by the Borrower with respect
to any drawing, or any other right of such defaulting Bank in connection with or
resulting from the drawing on such Letter of Credit, prior to distribution of
any payments hereunder to the defaulting Bank.
(i) The obligation of the Borrowers to reimburse the Issuing Bank for the
amount of any payment made by the Issuing Bank under any Letter of Credit, and
the obligations of the Banks under their respective participations under the
Letters of Credit, shall be absolute, unconditional, and irrevocable and shall
not be affected by any of the following circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure from
the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or other rights
which any Borrower may have at any time against any Bank, any
beneficiary of the Letter of Credit (or any persons or entities for
whom any such beneficiary may be acting) or any other Person, whether
in connection with the Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto, or any unrelated
transactions;
(iv) any demand, statement, or any other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document
appeared to comply with the terms of the Letter of Credit;
(v) the solvency or financial responsibility of any party issuing
any documents in connection with a Letter of Credit;
(vi) any failure or delay in notice of shipments or arrival of any
property;
(vii) any error in the transmission of any message relating to a
Letter of Credit not caused by the Issuing Bank, or any delay or
interruption in any such message;
28
(viii) any error, neglect or default of any correspondent of any
Bank in connection with a Letter of Credit;
(ix) any consequence arising from acts of God, war, insurrection,
disturbances, labor disputes, emergency conditions or other causes
beyond the control of the Issuing Bank;
(x) so long as the Issuing Bank in good faith determines that the
draft, contract or document appears to comply with the terms of the
Letter of Credit, the form, accuracy, genuineness or legal effect of
any contract or document referred to in any document submitted to the
Issuing Bank in connection with a Letter of Credit; and
(xi) where the Issuing Bank has acted in good faith and without
gross negligence or willful misconduct and observed general banking
usage, any other circumstance whatsoever.
(j) the Issuing Bank shall be entitled to the protection accorded to
the Administrative Agent pursuant to Section 10.6, mutatis mutandis.
------------ ------- --------
(k) The Issuing Bank may in its sole discretion replace any Bank with
respect to such Bank's entire respective Pro Rata Share of the Commitment,
if the senior unsecured long-term debt rating of such Bank or any bank
controlling such Bank falls below Standard & Poor's Ratings Group "A-"
rating or ▇▇▇▇▇'▇ Investors Service, Inc. "A3" rating with a bank (which may
be one or more of the Banks) reasonably acceptable to the Company. Any such
replacement shall be accomplished by an assignment by such replaced Bank of
its entire respective Pro Rata Share of the Commitment to the replacement
Bank pursuant to the provisions of Section 13.9. The Issuing Bank will
------------
promptly notify each Bank of any such substitution.
(l) As between the Borrower and the Issuing Bank, the Borrower
assumes all risks of the acts and omissions of, or misuse of any Letter of
Credit by, the respective beneficiaries of the Letters of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Bank shall
not be responsible: (1) for the validity, genuineness or legal effect of any
document submitted by any party in connection with the issuance of or any
drawing under the Letters of Credit, even if it should in fact prove to be
in any or all respects invalid, fraudulent or forged; (2) for the validity
or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid
29
or ineffective for any reason; (3) for errors in interpretation of
technical terms; (4) for the misapplication by the beneficiary of any
Letter of Credit of the proceeds of any drawing under such Letter of
Credit; provided that none of the events set forth in the foregoing
--------
clauses (1) through (4) shall have been caused by the gross negligence
or wilful misconduct of the Issuing Bank; and (5) for any consequences
arising from causes beyond the control of the Issuing Bank. None of
the above shall affect, impair, or prevent the vesting of any of the
Issuing Bank's rights or powers hereunder. In furtherance and
extension and not in limitation of the specific provisions hereinabove
set forth, any action taken or omitted by an Issuing Bank under or in
connection with the Letters of Credit, if taken or omitted in good
faith, without gross negligence or willful misconduct, shall not put
the Issuing Bank under any resulting liability to the Borrowers or the
Banks.
(m) The Issuing Bank shall have no obligation whatsoever to make
any factual or legal determinations as to the correctness of any
demand or payment under any Letter of Credit strictly complying with
the terms of such Letter of Credit before the Issuing Bank makes any
payment under the Letter of Credit. The Borrowers and the Banks hereby
waive (A) diligence, presentment, demand, protest or notice of any
kind, (B) any requirement that the Issuing Bank exhaust any right or
remedy against the Borrowers, the Administrative Agent, any other
participant in the credit, or any other Person, and (C) any claim or
defense based on any time or other indulgence granted to the Borrower,
the Administrative Agent or any other Person and any right of
subrogation to any rights or remedies of the Issuing Bank in respect
of any of the Letters of Credit or any defense that the Issuing Bank
has impaired any such right of subrogation.
(n) In the event that any payment made by or on behalf of the
Borrower pursuant to or in connection with any Letter of Credit is
rescinded or must otherwise be restored or returned to the Borrower or
other relevant party, as applicable, including as a result of any
insolvency, bankruptcy or reorganization or similar proceedings in
respect of the Borrower, the obligations of the Banks under this
Section 2.7(n) in respect of such rescinded, restored or returned
--------------
payment shall be reinstated in full and the Banks shall be liable to
indemnify the Issuing Bank hereunder as fully as if such payment had
never been made. The provision of this Section 2.7(n) shall survive
--------------
the payment of the obligations of the Borrowers under the Letters of
Credit.
(o) All amounts to be paid to the Issuing Bank by the Banks under
this Agreement shall be paid by the Banks to the Administrative Agent
for the account of the Issuing Bank, without any set-off or
counterclaim whatsoever and free and
30
clear of any without deduction for or on account of any taxes, duties
or other charges whatsoever, and without any liability therefor.
2.8 Administrative Agent's Right to Assume Funds Available for
---------------------------------------------------------
Advances. Unless the Administrative Agent shall have been notified by any Bank
--------
no later than the Banking Day prior to the funding by the Administrative Agent
of any Loan that such Bank does not intend to make available to the
Administrative Agent such Bank's Pro Rata Share of the total amount of such
Loan, the Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. Unless the Administrative Agent shall have
been notified by the appropriate Bank no later than one hour prior to the
funding by the Administrative Agent of any Competitive Advance by the
Administrative Agent on behalf of that Bank such Bank does not intend to make
available to the Administrative Agent such Bank's Competitive Advance the
Administrative Agent may assume that such Bank has made such amount available to
the Administrative Agent and the Administrative Agent may in reliance upon such
assumption, make available to the Borrower a corresponding amount. If the
Administrative Agent has made funds available to the Borrower based on such
assumptions and such corresponding amount is not in fact made available to the
Administrative Agent by such Bank, the Administrative Agent shall be entitled to
recover such corresponding amount on demand from such Bank, which demand shall
be made in a reasonably prompt manner. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent promptly shall notify the Borrower and the Borrower
shall pay such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover from such Bank interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to the actual cost to the
Administrative Agent of funding such amount as notified by the Administrative
Agent to such Bank. Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its Pro Rata Share of the Commitment or to prejudice any
rights that the Administrative Agent or the Borrower may have against any Bank
as a result of any default by such Bank hereunder.
2.9 Extension of Maturity Date. In the event that: (a) the
--------------------------
Company requests in writing no more than 90 days but no less than 60 days prior
to any anniversary of the Closing Date (an "Anniversary Date") prior to the
Maturity Date that the Maturity Date be extended for one year; (b) each Bank
shall have determined in its sole discretion to consent to such extension; and
(c) the Administrative Agent shall have delivered a written
31
notice of such determination to the Company no less than 15 days prior to such
Anniversary Date, then the Maturity Date shall be extended for an additional
one-year period. Any Bank that shall not have indicated its determination under
this Section 2.9 to the Administrative Agent on or prior to the 15th day prior
to such Anniversary Date shall be deemed not to have consented to such
extension.
ARTICLE 3
PAYMENTS AND FEES
-----------------
3.1 Principal and Interest
----------------------
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Loan and each Competitive Advance from the date
thereof until payment in full is made and shall accrue and be payable at the
rates set forth herein before and after default, before and after maturity,
before and after judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on overdue interest to
bear interest at the Default Rate to the fullest extent permitted by
applicable Laws.
(b) Interest accrued on each Base Rate Loan shall be payable quarterly
in arrears on the last day of each March, June, September and December
commencing on the first such date to occur after the Closing Date. Except as
------
otherwise provided in Section 3.9, the unpaid principal amount of any Base
-----------
Rate Loan shall bear interest at a fluctuating rate per annum equal to the
Base Rate. Each change in the interest rate hereunder shall take effect
simultaneously with the corresponding change in the Base Rate. Each change
in the Base Rate shall be effective as of 12:01 a.m., New York time, on the
Banking Day on which the change in the Base Rate is announced, unless
otherwise specified in such announcement, in which case the change shall be
effective as so specified.
(c) Interest accrued on each Eurodollar Rate Loan the Eurodollar
Period for which is three months or less shall be due and payable on the
last day of the applicable Eurodollar Period. Interest accrued on each
other Eurodollar Rate Loan shall be due and payable on every three month
anniversary of the date which is three months after the date such
Eurodollar Rate Loan was made, converted or continued pursuant to Section
2.6 and on the last day of the Eurodollar Period. Except as otherwise
------
provided in Section 3.9, the unpaid principal amount of any Eurodollar Rate
-----------
Loan shall bear interest at a rate per annum equal to the Eurodollar Rate
for that Eurodollar Rate Loan plus the Applicable Percentage. Each change
----
in the Applicable Percentage shall be effective as of the date of the
public
32
announcement or publication by Standard & Poor's Ratings Group or ▇▇▇▇▇'▇
Investors Service, Inc. of a change in the Company's senior unsecured long-
term debt ratings. Each Bank claiming a right to payment of a Eurodollar
Reserve Percentage in connection with any Eurodollar Rate Loan shall
deliver to the Company and the Administrative Agent a statement setting
forth in reasonable detail the amount of the Eurodollar Reserve Percentage
and the calculation of the increased amount payable by the Company in
respect of that Bank's Pro Rata Share of such Eurodollar Rate Loan. The
Company shall pay to the Administrative Agent, for the account of such
Bank, the amount of the Eurodollar Reserve Percentage set forth in such
Bank's statement together with each payment of interest on the applicable
Eurodollar Rate Loan.
(d) Interest accrued on each Competitive Advance shall be due and
payable on the maturity date of the Competitive Advance. Except as
------
otherwise provided in Section 3.9, the unpaid principal amount of each
-----------
Competitive Advance shall bear interest at the rate specified in the
relevant Competitive Bid.
(e) If not sooner paid, the principal Indebtedness evidenced by the
Notes shall be payable as follows:
(i) the principal amount of each Loan shall be payable on the
Maturity Date; and
(ii) the principal amount of each Competitive Advance shall be
payable on the maturity date of that Competitive Advance.
(f) The Committed Advance Notes may, at any time and from time to
time, voluntarily be paid or prepaid in whole or in part without premium or
penalty, except that with respect to any voluntary prepayment under this
------
subsection, (i) any partial prepayment shall be in minimum amount of
$2,000,000 and multiples of $1,000,000 in excess thereof, (ii) the
Administrative Agent shall have received written notice of any prepayment
by 11:00 a.m. (New York time) on the date of prepayment (which shall be a
Banking Day), in the case of a Base Rate Loan, and by 1:00 p.m. (New York
time) three (3) Banking Days before the date of prepayment, in the case of
a Eurodollar Rate Loan, which notice shall identify the date and amount of
the prepayment and the Loan(s) being prepaid, (iii) each prepayment of
principal shall be accompanied by payment of interest accrued through the
date of payment on the amount of principal paid and (iv) in any event, any
payment or prepayment of all or any part of any Eurodollar Rate Loan on a
day other than the last day of the applicable Interest Period shall be
subject to Section 3.8(c).
--------------
33
(g) The Competitive Advance Notes may not be voluntarily prepaid in
whole or in part without the consent of the holder thereof. In the event of
any prepayment of the Competitive Advance Notes in violation of this
Section, the Company shall pay to the affected Bank such amounts as are
necessary, in the reasonable estimation of that Bank, to compensate that
Bank for the effect of such prepayment.
3.2 Commitment Fee. On the last day of each Fiscal Quarter and on
--------------
the Maturity Date and, if earlier, the date of termination of the Commitment in
its entirety, the Company shall pay to the Administrative Agent, for the account
of each Bank according to its Pro Rata Share of the Commitment, commitment fees
equal to the Applicable Percentage times the average daily Unused Portion of the
-----
Commitment during the Fiscal Quarter then ending. Each change in the Applicable
Percentage shall be effective on the date of the public announcement or
publication by Standard & Poor's Ratings Group or ▇▇▇▇▇'▇ Investors Service,
Inc. of a change in the Company's senior unsecured long-term debt ratings.
3.3 Arranger Fee and Agency Fees. On the date of this Agreement, the
----------------------------
Company shall pay to the Arranger a fee in the amounts agreed upon by a letter
agreement dated the date hereof between the Company and the Arranger. Such fees
are for the sole account of the Arranger and are fully earned upon receipt and
non-refundable. On the date of this Agreement and on each anniversary thereof,
the Company shall pay to the Administrative Agent, agency fees in the amounts
agreed upon by letter agreements dated the date hereof between the Company and
the Administrative Agent. The agency fees are for the sole account of the
Administrative Agent and are fully earned upon receipt and non-refundable.
3.4 LC Issuance Fee. The Company shall pay, on the last day of each
---------------
Fiscal Quarter, a LC Issuance Fee to the Administrative Agent for the account of
the Issuing Bank, in the amounts agreed upon by letter agreements dated the date
hereof between the Company and the Issuing Bank. The LC Issuance Fees are for
the sole account of the applicable Issuing Bank and are fully earned upon
receipt and non-refundable.
3.5 LC Reimbursement Fee. The Company shall pay, on the last day of
--------------------
each Fiscal Quarter, a LC Reimbursement Fee to the Administrative Agent, for the
pro rata benefit of the Banks in accordance with their respective Pro Rata
Shares of the Commitment, in an amount equal to the average daily face amount of
Letters of Credit outstanding during such Fiscal Quarter times the Applicable
Percentage. Each change in the Applicable Percentage shall be effective on the
date of the public announcement or publication by Standard & Poor's Ratings
Group or ▇▇▇▇▇'▇ Investors Service, Inc. of a change in the Company's senior
unsecured long-term debt ratings.
34
3.6 LC Drawing Fee. The Company shall pay a drawing fee to the
--------------
Issuing Bank in the amount of $250 for each drawing under any of its Letters of
Credit, payable on the date of such drawing.
3.7 Capital Adequacy. If any Bank (including an Issuing Bank)
----------------
determines in good faith that compliance with any Law or regulation or with any
guideline or request (excluding any published as of the date hereof or currently
scheduled to take effect) from any central bank or other Governmental Agency
(whether or not having the force of Law), in each case adopted or effective
after the date hereof has or would have the effect of reducing the rate of
return on the capital of such Bank or any corporation controlling such Bank as a
consequence of, or with reference to, such Bank's Pro Rata Share of any portion
of the Commitment or its making or maintaining of Advances, or its issuance of
any Letter of Credit, below the rate which such Bank or such other corporation
could have achieved but for such compliance (taking into account the policies of
such Bank or corporation with regard to capital), then the Company shall from
time to time, upon demand by such Bank (with a copy of such demand to the
Administrative Agent), immediately pay to such Bank additional amounts
sufficient to compensate such Bank or other corporation for such reduction. A
certificate as to such amounts, setting forth in reasonable detail the basis for
such calculations, submitted to the Company and the Administrative Agent by such
Bank, shall be conclusive and binding for all purposes, absent manifest error.
Each Bank agrees promptly to notify the Company and the Administrative Agent of
any circumstances that would cause the Company to pay additional amounts
pursuant to this Section 3.7. If any Bank shall have been compensated pursuant
-----------
to this Section 3.7, the Company shall have the right, upon 30 days prior notice
-----------
to the Administrative Agent, with the assistance (but not the obligation) of the
Administrative Agent, to seek a substitute bank or banks (which may be one or
more of the Banks) satisfactory to the Company, the Administrative Agent and the
Issuing Bank to assume the Commitment of such Bank and to purchase the Notes of
such Bank and all amounts owing to such Bank in respect of Advances and Letters
of Credit under this Agreement pursuant to Section 13.9.
------------
3.8 Increased Costs.
---------------
(a) If, after the date hereof, by reason of (i) the adoption of any
Law by any Governmental Agency, central branch or comparable authority with
respect to activities in the Eurodollar Market, or (ii) any change in the
interpretation or administration of any existing Law by any Governmental
Agency, central bank or comparable authority charged with the
interpretation or administration thereof, or (iii) compliance by any Bank
or its Eurodollar Lending Office or the Issuing Bank with any request or
directive (whether or not having the force of Law) of any such Governmental
Agency, central bank or comparable authority,
35
or (iv) the existence or occurrence of circumstances affecting the
Eurodollar Market generally that are beyond the reasonable control of the
Banks:
(1)(A) any reserve (including, without limitation, any reserve
---------
imposed by the Board of Governors of the Federal Reserve System),
special deposit or similar requirements shall be imposed, modified or
deemed applicable against assets of, deposits with or for the account
of, or credit extended by, any Bank or its Eurodollar Lending Office
or the Issuing Bank; or
(B) any Bank or its Eurodollar Lending Office or the Eurodollar
Market or the Issuing Bank shall have imposed on it any other
condition affecting any Advance, any of its Notes, its obligation to
make Advances or this Agreement, or its obligation to make or maintain
Letters of Credit hereunder, or any of the same shall otherwise be
adversely affected;
and the result of any of the foregoing, as determined by such Bank,
increases the cost to such Bank or its Eurodollar Lending Office of making
or maintaining any Advance or in respect of any Advance, any of its Notes
or its obligation to make Advances or the issuance of maintenance of any
Letter of Credit or reduces the amount of any sum received or receivable by
such Bank or its Eurodollar Lending Office with respect to any Advance, any
of its Notes or its obligation to make Advances (assuming such Bank's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in
the Eurodollar Market) or in respect of Letters of Credit or its
participation therein, then, upon demand by such Bank or the Issuing Bank
(with a copy to the Administrative Agent), the Company shall pay to such
Bank or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Bank or the Issuing Bank, as the case may
be, for such increased cost or reduction. A statement of any Bank or the
Issuing Bank claiming compensation under this subsection and setting forth
the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. Each Bank and the Issuing
Bank agree to endeavor promptly to notify the Company of any event of which
it has actual knowledge (and, in any event, within 90 days from the date on
which it obtained such knowledge), occurring after the Closing Date, which
will entitle such Bank or the Issuing Bank to compensation pursuant to this
Section, and agrees to designate a different Eurodollar Lending Office if
such designation will avoid the need for or reduce the amount of such
compensation and will not, in the judgment of such Bank or the Issuing
Bank, otherwise be disadvantageous to such Bank or the Issuing Bank. If
any Bank claims compensation under this Section, the Company may at any
time, upon at
36
least four (4) Banking Days' prior notice to the Administrative Agent and
Banks and upon payment in full of the amounts provided for in this Section
through the date of such payment plus any fee required by Section 3.8(c),
---- --------------
pay in full all Advances or request that all Eurodollar Rate Advances be
converted to Base Rate Advances or all Base Rate Advances be converted to
Eurodollar Rate Advances. If any Bank shall have been compensated pursuant
to this Section 3.8(a), the Company shall have the right, upon 30 days
--------------
prior notice to the Administrative Agent, with the assistance (but not the
obligation) of the Administrative Agent, to seek a substitute bank or banks
(which may be one or more of the Banks) satisfactory to the Company, the
Administrative Agent and the Issuing Bank to assume the Commitment of such
Bank and to purchase the Notes of such Bank and all amounts owing to such
Bank in respect of Advances and Letters of Credit under this Agreement
pursuant to Section 13.9.
------------
(2) If any Bank shall have reasonably determined that it shall be
unlawful for such Bank or its Eurodollar Lending Office to make, maintain
or fund its portion of any Eurodollar Rate Loan, or the authority of such
Bank to purchase or sell, or to take deposits of, dollars in the Eurodollar
Market, or to determine or charge interest rates based upon the Eurodollar
Rate has become unlawful, then such Bank shall so notify the Administrative
Agent and the other Banks, and such Bank's obligation to make Eurodollar
Rate Advances shall be suspended for the duration of such illegality and
the Administrative Agent forthwith shall give notice thereof to the Company
and such Bank shall make a Base Rate Advance as part of any successive
Eurodollar Rate Loan. Upon receipt of such notice, the outstanding
principal amount of all Eurodollar Rate Advances made by such Bank,
together with accrued interest thereon, automatically shall be converted to
Base Rate Advances with Interest Periods corresponding to the Eurodollar
Loans of which such Eurodollar Rate Advances were a part on either (A) the
last day of the Eurodollar Period(s) applicable to such Eurodollar Rate
Advances if the affected Bank may lawfully continue to maintain and fund
such Eurodollar Rate Advances to such day(s) or (B) immediately if the
affected Bank may not lawfully continue to fund and maintain such
Eurodollar Rate Advances to such day(s), provided that in such event the
--------
conversion shall not be subject to payment of a fee under Section 3.8(c).
--------------
(b) If, with respect to any proposed Eurodollar Rate Loan:
(i) the Reference Banks reasonably determine that, by reason of
circumstances affecting the Eurodollar Market generally that are
beyond the reasonable control of the Banks, deposits in dollars (in
the applicable amounts) are not being offered to
37
each of the Banks in the Eurodollar Market for the applicable
Eurodollar Period; or
(ii) the Reference Banks advise the Administrative Agent that the
Eurodollar Rate as determined by the Administrative Agent (1) does not
represent the effective pricing to such Banks for deposits in dollars
in the Eurodollar Market in the relevant amount for the applicable
Eurodollar Period, or (2) will not adequately and fairly reflect the
cost to such Banks of making the applicable Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to the
Company and the Banks, whereupon until the Administrative Agent notifies
the Company that the circumstances giving rise to such suspension no longer
exist, the obligation of the Banks to make any future Eurodollar Rate
Advances shall be suspended. If at the time of such notice there is then
pending a Request for Loan that specifies a Eurodollar Rate Loan, such
Request for Loan shall be deemed to specify a Base Rate Loan.
(c) The Company shall compensate each Bank for any loss sustained by
that Bank in connection with the liquidation or re-employment of funds,
excluding any loss of margin, and, without duplication, all actual out-of-
pocket expenses (excluding allocations of any expense internal to such
Bank) reasonably attributable thereto that such Bank may sustain: (i) if
for any reason (other than a default by that Bank) a borrowing of any
Eurodollar Rate Loan does not occur on a date or in the amount specified
therefor in a Request for Loan or a telephonic request for loan or a
Conversion to or continuation of any Eurodollar Rate Loan does not occur on
a date specified therefor in a Notice of Conversion/Continuation or a
telephone request for Conversion or continuation; (ii) if any prepayment or
other principal payment or any conversion (other than as a result of a
conversion required under Section 3.8(a)(2)) of any of its Eurodollar Rate
-----------------
Loans occurs on a date prior to the last day of an Interest Period
applicable to that Loan, or (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by the Company. Each Bank's determination of any amount
payable under this Section 3.8(c) shall be conclusive in the absence of
--------------
manifest error. Each Bank shall submit an invoice to the Administrative
Agent of the amount payable by the Company under this Section 3.8(c)
--------------
setting forth in reasonable detail the basis for such amount and the
Administrative Agent shall notify the Company of such amount. The Company
shall pay such amount to the Administrative Agent for the account of the
relevant Bank, and the Administrative Agent shall promptly pay each
relevant Bank the portion of the amount owed to it.
38
(d) Anything in this Agreement to the contrary notwithstanding, to the
extent any notice under Section 3.7, 3.8 or 3.12 is given by any Bank more
than 180 days after such Bank has knowledge (or should have had knowledge)
of the occurrence of the event giving rise to the additional cost,
reduction in amounts, loss, tax or other additional amounts described in
such Section 3.7, 3.8 or 3.12, as the case may be, such Bank shall not be
entitled to compensation under such Section for any such amounts incurred
or accruing prior to the giving of such notice.
3.9 Late Payments. If any installment of principal or interest or any
-------------
fee or cost or other amount payable (other than those amounts covered under
Section 13.3) under any Loan Document to the Administrative Agent, Issuing Bank
or any Bank is not paid when due, it shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the sum of the Base
Rate plus 2% per annum, to the fullest extent permitted by applicable Laws.
----
Accrued and unpaid interest on past due amounts (including, without limitation,
---------
interest on past due interest) shall be compounded daily and shall be payable on
demand, to the fullest extent permitted by applicable Laws.
3.10 Computation of Interest and Fees. Computation of interest on Base
--------------------------------
Rate Loans shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. Computation of all fees and interest on
Eurodollar Rate Loans and Competitive Advances shall be calculated on the basis
of a year of 360 days and the actual number of days elapsed. Any Advance that is
repaid on the same day on which it is made shall bear interest for one day.
3.11 Non-Banking Days. If any payment to be made by a Borrower or any
----------------
other party under any Loan Document shall come due on a day other than a Banking
Day, payment shall instead be considered due on the next succeeding Banking Day
and the extension of time shall be reflected in computing the amount of such
payment.
3.12 Manner and Treatment of Payments.
--------------------------------
(a) Each payment hereunder or on the Notes or under any other Loan
Document shall be made to the Administrative Agent, at the Administrative
Agent's Office, for the account of each of the appropriate Banks or the
Issuing Bank, as the case may be, in immediately available funds not later
than 2:00 p.m., New York time, on the day of payment (which must be a
Banking Day). All payments received after 2:00 p.m., New York time, on any
particular Banking Day, shall be deemed received on the next succeeding
Banking Day. The amount of all payments received by the Administrative
Agent for the account of each Bank or Issuing Bank shall be promptly paid
by the Administrative Agent to the applicable Bank or the Issuing Bank, as
the case may be, in immediately
39
available funds. All payments shall be made in lawful money of the United
States of America.
(b) Prior to the occurrence of any Event of Default, each payment or
prepayment received by the Administrative Agent on account of any Loan or
Competitive Advance shall be applied:
(i) To the Notes, pro rata in accordance with the aggregate
principal Indebtedness owed to each Bank under the Notes,
(ii) Notwithstanding clause (i) above, any payment by a Borrower
which is designated as a prepayment of a Competitive Advance Note
shall be applied to such Competitive Advance Note, provided that (A)
--------
the consent of the affected Bank to such prepayment has been obtained
and (B) the payment of all amounts due with respect to the Loan
Documents on the date of such prepayment shall have been provided for
to the satisfaction of the Administrative Agent,
(iii) Any mandatory prepayment of Loans shall be applied first to
Base Rate Loans to the full extent thereof before application to
Eurodollar Rate Loans as determined by Administrative Agent, in each
case in a manner which minimizes the amount of any payments required
to be made by Company pursuant to Section 3.8(c).
(c) Each Bank shall use its best efforts to keep a record of Advances
made by it and payments received by it with respect to its Notes and,
subject to Section 10.6(g), such record shall be presumptive evidence of
---------------
the amounts owing. Notwithstanding the foregoing sentence, no Bank shall be
liable to any party for any failure to keep such a record.
(d) (i) Each payment of any amount payable by any Borrower to or for
the account of any Bank under this Agreement or any other Loan
Document and by the Company acting in its capacity as guarantor under
Article 11 shall be made free and clear of, and without reduction by
reason of, any Taxes or Other Taxes. To the extent that a Borrower or
the Company acting in its capacity as guarantor under Article 11 is
obligated by applicable Laws to make any deduction or withholding on
account of Taxes or Other Taxes, from any amount payable to any Bank
under this Agreement, such Borrower shall (i) make such deduction or
withholding and pay the same to the relevant Governmental Agency and
(ii) pay such additional amount as is necessary to result in Bank's
receiving, after all required deductions (including deductions
applicable to
40
additional sums payable under this Section 3.12(d)) an amount equal to
the amount to which that Bank would have been entitled under this
Agreement or other Loan Document absent such deduction.
(ii) If and when receipt of a payment under this Section 3.12(d)
results in an excess payment or credit to that Bank on account of the
relevant Taxes or Other Taxes, that Bank shall refund such excess to
such Borrower.
(iii) Each Bank organized under the laws of a jurisdiction outside
the United States, on or prior to the Closing Date in the case of each
Bank listed on the signature pages hereof and on or prior to the date
on which it becomes a Bank in the case of each other Bank, but in no
event less than ten (10) Banking Days prior to the next succeeding
Interest Payment Date, and from time to time thereafter if requested
in writing by any Borrower, shall provide any Borrower and the
Administrative Agent with Internal Revenue Service Form 1001 or 4224,
as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Bank is entitled to benefits
under an income tax treaty to which the United States is a party which
exempts the Bank from withholding tax or reduces the rate of
withholding tax in payments of interest for the account of such Bank
or certifying that the income receivable pursuant to this Agreement
and the other Loan Documents is effectively connected with the conduct
of a trade or business in the United States; provided, however that
--------
should a Bank, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its
failure to deliver a form required hereunder, each Borrower shall take
such steps as such Bank shall reasonably request to assist such Bank
to recover such Taxes.
(iv) For any period with respect to which a Bank has failed to
provide the Borrower or the Administrative Agent with the appropriate
form pursuant to Section 3.12(d)(iii) (unless such failure is due to a
change in treaty, law or regulation occurring subsequent to the date
on which such form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 3.12(d)(i) with
respect to Taxes imposed by the United States.
(v) If a Borrower or the Company acting in its capacity as
guarantor under Article 11 is required to pay additional amounts to or
for the account of any Bank pursuant to this Section 3.12, then such
Bank will change the jurisdiction of its applicable lending
41
office if, in the judgment of such Bank, such change (i) will
eliminate or reduce any such additional payment that may thereafter
accrue and (ii) is not otherwise disadvantageous to such Bank.
3.13 Funding Sources. Nothing in this Agreement shall be deemed to
---------------
obligate any Bank to obtain the funds for any Loan or Advance in any particular
place or manner or to constitute a representation by any Bank that it has
obtained or will obtain the funds for any Loan or Advance in any particular
place or manner. Each of the Borrowers agree that, for purposes of any
determination to be made under Section 3.8 or the definition of Eurodollar
Reserve Percentage, each Bank shall be deemed to have funded its Eurodollar Rate
Advances with dollar deposits in the London interbank market.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by any
---------------------------------------
Bank not to require payment of any interest (including interest arising under
---------
Section 3.9), fee, cost or other amount payable under any Loan Document, or to
-----------
calculate any amount payable by a particular method, on any occasion shall in no
way limit or be deemed a waiver of such Bank's right to require full payment of
any interest (including interest arising under Section 3.9), fee, cost or other
--------- -----------
amount payable under any Loan Document, or to calculate an amount payable by
another method, on any other or subsequent occasion.
3.15 Administrative Agent's Right to Assume Payments Will be Made by
---------------------------------------------------------------
Borrower. Unless the Administrative Agent shall have been notified by a
--------
Borrower prior to the date on which any payment to be made by that Borrower
hereunder is due that such Borrower does not intend to remit such payment, the
Administrative Agent may, in its discretion, assume that such Borrower has
remitted such payment when so due and the Administrative Agent may, in its
discretion and in reliance upon such assumption, make available to each Bank on
such payment date an amount equal to such Bank's share of such assumed payment.
If a Borrower has not in fact remitted such payment to the Administrative Agent,
each Bank shall forthwith on demand repay to the Administrative Agent the amount
of such assumed payment made available to such Bank, together with interest
thereon in respect of each day from and including the date such amount was made
available by the Administrative Agent to such Bank to the date such amount is
repaid to the Administrative Agent at a rate per annum equal to the actual cost
to the Administrative Agent of funding such amount as notified by the
Administrative Agent to such Bank.
3.16 Fee Determination Detail. The Administrative Agent, the Issuing
------------------------
Bank and any Bank, shall provide reasonable detail to the Company regarding the
manner in which the amount of any payment to the Banks, or that Bank, under
Article 3 has been determined.
---------
42
3.17 Survivability. All of the Company's obligations under Sections
------------- --------
3.7 and 3.8 shall survive for thirty (30) days following the termination of this
--- ---
Agreement; provided, however, that such obligations shall not, from and after
-------- -------
the termination of this Agreement, be deemed Obligations for any purpose under
the Loan Documents.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants to the Banks and each other
Borrower represents and warrants to the Banks (with respect to itself only)
that:
4.1 Existence and Qualification; Power; Compliance With Laws. Each
--------------------------------------------------------
of such Borrower and its Subsidiaries is a corporation duly formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation. Each of such Borrower and its Subsidiaries is duly qualified to
transact business, and is in good standing, in any jurisdiction in which the
conduct of its business or the ownership or leasing of its Properties makes such
qualification or registration necessary, except where the failure so to qualify
------
or register and to be in good standing would not constitute a Material Adverse
Effect. Each of such Borrower and its Subsidiaries has all requisite corporate
power and authority to conduct its business and to own and lease its Properties.
Each Borrower has all requisite corporate power and authority to execute and
deliver each Loan Document to which it is a party and to perform its
Obligations. All outstanding shares of capital stock of each Borrower are duly
authorized, validly issued, fully paid, nonassessable and issued in compliance
with all applicable state and federal securities and other Laws. Each of such
Borrower and its Subsidiaries has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has accomplished all filings,
registrations and qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary for the transaction
of its business, except where the failure so to comply, file, register, qualify
------
or obtain exemptions does not constitute a Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and Instruments and
---------------------------------------------------------------
Government Regulations. The execution, delivery and performance of the Loan
----------------------
Documents by such Borrower have been duly authorized by all necessary corporate
action, and do not:
(a) Require any consent or approval not heretofore obtained of any
partner, director, stockholder, security holder or creditor of such
Borrower;
(b) Result in or require the creation or imposition of any Lien upon
or with respect to any Property now owned or leased or hereafter
acquired by such Borrower;
43
(c) Violate, to the best knowledge of such Borrower, any Requirement
of Law applicable to such Borrower;
(d) Result (or, with the giving of notice or passage of time or both,
would result) in a breach of or default under, or cause or permit the
acceleration of any obligation owed under any Contractual Obligation to
which such Borrower is a party or by which such Borrower or any of its
Property is bound or affected;
except where failure to receive such consent or approval or creation of such
Lien or violation of, or default under, any such Requirement of Law or
Contractual Obligation would not constitute a Material Adverse Effect.
4.3 No Governmental Approvals Required. Subject to the
----------------------------------
representations of the Banks contained in Section 13.9, no authorization,
------------
consent, approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is required to authorize or permit
under applicable Laws the execution, delivery and performance of the Loan
Documents by such Borrower.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth as of the
------------ ------------
Closing Date (i) the names, the form of legal entity, number of shares of
capital stock issued and outstanding, jurisdictions of organization and chief
executive offices of all Subsidiaries of such Borrower and (ii) the names, the
form of legal entity, equity percentage ownership, and jurisdictions of
organization of each partnership and joint venture that is excluded from the
definition of the term "Subsidiary" but as to which the Company or a Subsidiary
owns 50% or more of the ownership interests.
4.5 Financial Statements. The Company has furnished to the Banks the
--------------------
audited consolidated financial statements of the Company and its Consolidated
Subsidiaries as at December 31, 1997 and for the twelve months then ended and
unaudited consolidated financial statements of the Company and its Subsidiaries
as at March 31, 1998 and for the three months then ended. Such financial
statements fairly present the financial condition and the results of operations
of the Company and its Subsidiaries as at such dates and for such periods in
accordance with Generally Accepted Accounting Principles.
4.6 No Other Liabilities; No Material Adverse Effect. As of the
------------------------------------------------
Closing Date, the Company and its Consolidated Subsidiaries do not have any
material liability or material contingent liability not reflected or disclosed
in the balance sheet or notes thereto described in Section 4.5, other than
-----------
liabilities and contingent liabilities arising in the ordinary course of
business subsequent to December 31, 1997. There has been no event or
circumstance that constitutes a Material Adverse
44
Effect with respect to the Company and its Subsidiaries since December 31, 1997.
4.7 Governmental Regulation. No Borrower is subject to regulation
-----------------------
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, the Investment Company Act of 1940 or to any other Law
limiting or regulating its ability to incur Indebtedness for money borrowed.
4.8 Litigation. Except for (a) any matter fully covered (subject
---------- ------
to applicable deductibles and retentions) by insurance for which the insurance
carrier has assumed full responsibility, (b) matters described in public
documents filed with Governmental Agencies and delivered to the Banks prior to
the Closing Date, and (c) matters disclosed on Schedule 4.8 hereto, there are no
------------
actions, suits, proceedings or investigations pending as to which the Company or
any of its Subsidiaries have been served or have received notice or, to the best
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries or any Property of any of them before any Governmental Agency
which could reasonably be expected to constitute a Material Adverse Effect.
4.9 Binding Obligations. Each of the Loan Documents will, when
-------------------
executed and delivered by such Borrower, constitute the legal, valid and binding
obligation of such Borrower, enforceable against such Borrower in accordance
with its terms, except as enforcement may be limited by Debtor Relief Laws or
------
equitable principles relating to the granting of specific performance and other
equitable remedies as a matter of judicial discretion.
4.10 No Default. No event has occurred and is continuing that is a
----------
Default or Event of Default.
4.11 Employee Benefit Plans.
----------------------
(a) The Company and each of its ERISA Affiliates are in compliance
with all applicable provisions and requirements of ERISA and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan, except where the failure to be in such compliance or
to perform such obligation would not constitute a Material Adverse Effect.
(b) No ERISA Event that would constitute a Material Adverse Effect
has occurred or is reasonably expected to occur.
(c) Except to the extent required under Section 4980B of the Code,
no Employee Benefit Plan maintained by the Company or any of its Current
ERISA Affiliates provides health or welfare benefits (through the purchase
of insurance or otherwise) for any retired or former employees of the
Company or any of its Current ERISA Affiliates.
45
(d) As of the most recent valuation date for any Pension Plan with respect
to which the Company or a Subsidiary has any financial liability (including
potential joint and several liability) in the event any such Pension Plan were
to terminate, the amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans
(excluding for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities), does not exceed $30,000,000.
4.12 Regulation U. No part of the proceeds of any Advance hereunder will be
------------
used to purchase or carry, or to extend credit to others for the purpose of
purchasing or carrying, any "margin stock" (as such term is defined in
Regulation U) in violation of Regulation U. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying any
such "margin stock."
4.13 Disclosure. All written information heretofore supplied by the
----------
Company to the Administrative Agent for the purposes of this Agreement is true
and accurate in all material respects on the date as of which such information
is stated. The Company has disclosed to the Administrative Agent all facts which
materially and adversely may, in the good faith opinion of the Company, affect
(to the extent the Company can reasonably foresee) the financial condition of
the Company and its Subsidiaries, taken as a whole, or the ability of the
Company to perform its obligations under this Agreement.
4.14 Tax Liability. Each of the Company and its Subsidiaries has filed or
-------------
caused to be filed all tax returns which are required to have been filed by it,
and has paid or caused to be paid, or made provision for the payment of, all
taxes with respect to the periods, Property or transactions covered by said
returns, or pursuant to any assessment received by the Company or any of its
Subsidiaries, except (a) taxes for which the Company has been fully indemnified,
------
(b) such taxes, if any, as are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been established and
maintained and (c) where the failure to so file or pay would be immaterial to
the financial condition, business or prospects of the Company.
4.15 Environmental Matters. As of the Closing Date, except as set forth in
---------------------
the Company's annual report on Form 10-K for the year ended December 31, 1997 to
the Securities and Exchange Commission, or as disclosed in Schedule 4.15 annexed
-------------
hereto, (a) the Company and each Subsidiary have complied with all Environmental
Laws, except to the extent that the failure to so comply would not be reasonably
likely to result in a Material Adverse Effect, (b) the Company's and its
Subsidiaries' facilities do not manage any hazardous wastes, hazardous
substances, hazardous materials, toxic substances or toxic
46
pollutants in any manner that would result in a violation of any Environmental
Law, except for violations that would not be reasonably likely to result in a
Material Adverse Effect and (c) the Company is aware of no events, conditions or
circumstances involving environmental pollution or contamination or public or
employee health or safety, in each case applicable to it or its Subsidiaries,
that has resulted or would be reasonably likely to result in a Material Adverse
Effect.
ARTICLE 5
AFFIRMATIVE COVENANTS
---------------------
(OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)
---------------------------------------------------
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed, or any portion of the Commitment remains in force, each
Borrower shall, and shall cause each of its Subsidiaries to, unless the
Administrative Agent (acting on the direction of the Majority Banks) otherwise
consents in writing:
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge promptly
------------------------------------------
all taxes, assessments and governmental charges or levies imposed upon any of
them, upon their respective Property or any part thereof, or upon their
respective income or profits or any part thereof, except that the Company and
------
its Subsidiaries shall not be required to pay or cause to be paid any tax,
assessment, charge or levy that is not yet past due, or is being contested in
good faith by appropriate proceedings, so long as the relevant entity has
established and maintains adequate reserves for the payment of the same and by
reason of such nonpayment and contest no material item or portion of Property of
the Company and its Subsidiaries, taken as a whole, is in jeopardy of being
seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their respective
-------------------------
existences in the jurisdiction of their formation and all authorizations,
rights, franchises, privileges, consents, approvals, orders, licenses, permits,
or registrations from any Governmental Agency that are necessary for the
transaction of their respective business, and qualify and remain qualified to
transact business in each jurisdiction in which such qualification is necessary
in view of their respective business or the ownership or leasing of their
respective Properties except where the failure to maintain such preservation or
maintenance of existence, authorizations, rights, franchises, privileges,
consents, approvals, orders, licenses, permits or registration or to do so
qualify would not constitute a Material Adverse Effect and; provided that a
--------
merger permitted under Section 6.2 shall not constitute a violation of this
-----------
covenant. Nothing herein contained shall prevent the termination of the business
or corporate existence of any Subsidiary (other than a Borrower) that, in the
judgment of the Company, is no longer necessary or
47
desirable, as long as immediately after giving effect to any such transaction,
no Default shall have occurred and be continuing.
5.3 Maintenance of Properties. Maintain, preserve and protect all of
-------------------------
their respective depreciable Properties in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
their respective Properties, except that any failure to so maintain, preserve or
------
protect such Properties that does not constitute a Material Adverse Effect shall
not constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty and other
------------------------
insurance (subject to customary deductibles and retentions), with responsible
insurance companies in such amounts and against such risks as is carried by
responsible companies engaged in similar businesses and owning similar assets in
the general areas in which the Company and its Subsidiaries operate; provided
that, notwithstanding the foregoing, the Company may self-insure for earthquake
risk.
5.5 Compliance With Laws. Comply with all Requirements of Law
--------------------
noncompliance with which constitutes a Material Adverse Effect, except that the
------
Company and its Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate proceedings.
5.6 Visitation. Upon reasonable notice permit the Administrative Agent or
----------
representatives of any Bank at the Administrative Agent's or such Bank's expense
to visit any of its major properties and to discuss its affairs and finances
with its officers and independent public accountants, all at such reasonable
times and as often as may reasonably be requested.
5.7 Keeping of Records and Books of Account. Keep adequate records and
---------------------------------------
books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles, and in material conformity with all
applicable requirements of any Governmental Agency having regulatory
jurisdiction over the Company or any of its Subsidiaries.
5.8 Use of Proceeds. Use the proceeds of Advances only for general
---------------
corporate purposes of the Borrowers; provided that proceeds of Advances shall
not be used for any Hostile Acquisition. Use the Letters of Credit only for
trade, commercial and standby letters of credit in the ordinary course of
business.
ARTICLE 6
NEGATIVE COVENANTS
------------------
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed, or any portion of the
48
Commitment remains in force, the Company shall not, and shall not permit any of
its Subsidiaries to, unless the Administrative Agent (acting on the direction of
the Majority Banks) otherwise consents in writing:
6.1 Change in Nature of Business. Make any material change in the nature
----------------------------
of the business of the Company and its Subsidiaries, taken as a whole, as at
present conducted.
6.2 Mergers. Merge, consolidate or amalgamate with or into any Person, or
-------
convey substantially all of its Properties and assets to another Person, unless
------
each of the following conditions are met:
(a) no Default or Event of Default exists or would exist immediately
following the consummation of such merger, consolidation, amalgamation or
conveyance;
(b) in a merger, consolidation or amalgamation of the Company with
another Person or Persons, the Company is the surviving entity;
(c) in the case of a conveyance of Properties and assets, the
Properties and assets conveyed do not consist of substantially all of the
Properties and assets of the Company and its Subsidiaries taken as a whole;
and
(d) the Company and any Borrowers surviving the merger, consolidation
or amalgamation continue in compliance with all the terms and conditions
set forth in this Agreement.
6.3 Acquisitions of Securities of the Company. Make any Investment in or
-----------------------------------------
acquisition of Securities of the Company so long as an Event of Default is
continuing other than repurchases of Securities of the Company from terminated
----------
employees or consultants.
6.4 Distributions. Make any Distribution, whether from capital, income or
-------------
otherwise, and whether in Cash or other Property, except:
------
(a) Distributions by Subsidiaries of the Company to the Company or to
a wholly owned Subsidiary of the Company;
(b) repurchases of Securities of the Company from terminated employees
or consultants; and
(c) any other Distribution if, after the making of such Distribution,
there shall not exist an Event of Default or a breach by any Borrower of
any covenant contained in Article 6.
49
6.5 Liens; Negative Pledges; Sales and Leasebacks. Create, incur, assume or
---------------------------------------------
suffer to exist any Lien of any nature upon or with respect to any of their
respective Properties, whether now owned or hereafter acquired, or engage in any
sale and leaseback transaction with respect to its Property, except:
------
(a) Permitted Encumbrances;
(b) Liens in favor of the Administrative Agent or the Banks under the
Loan Documents;
(c) Liens existing on the date hereof and listed on Schedule 6.5 and
------------
Liens on the same Property which secure Indebtedness which replaces or
refinances the Indebtedness originally secured by those Liens; provided
--------
that the obligations secured thereby are not increased;
(d) pre-existing Liens on assets acquired by the Company or any of its
Subsidiaries after the Closing Date; and
(e) Liens securing Indebtedness or obligations (including sale and
leaseback transactions to which the Company or any Subsidiary is a party as
vendor and lessee) incurred after the date hereof the outstanding amount of
which Indebtedness or obligation does not in the aggregate exceed 35% of
consolidated total assets of the Company (measured as of the last day of
the most recently ended Fiscal Quarter).
6.6 Transactions with Affiliates. Enter into any transaction of any kind
----------------------------
which is material to the Company and its Subsidiaries taken as a whole with any
Affiliate of the Company other than (a) transactions between or among the
----------
Company and its Subsidiaries or between or among its Subsidiaries, (b)
transactions on terms at least as favorable to the Company or its Subsidiaries
as would be the case in an arm's-length transaction between unrelated parties of
equal bargaining power, and (c) transactions approved by a majority of the
disinterested members of the Board of Directors of Company or the applicable
Subsidiary.
6.7 Interest Charge Coverage Ratio. Permit the Interest Charge Coverage
------------------------------
Ratio, as of the last day of each Fiscal Quarter, to be less than 3.00 to 1.00.
6.8 Tangible Net Worth. Permit Tangible Net Worth, as of the last day of
------------------
each Fiscal Quarter, to be less than $1,500,000,000 plus the sum of the
----
following amounts calculated separately for each Fiscal Quarter in the
Calculation Period and aggregated for all Fiscal Quarters in the Calculation
Period: (a) 25% of the net cash proceeds of any issuance by the Company of
equity securities during each such Fiscal Quarter plus (b) 25% of Net Income
(but not less than $0) for each such Fiscal Quarter
50
minus (c) 25% of any funds used by the Company to repurchase the Company's
-----
equity securities during each such Fiscal Quarter. The term "Calculation Period"
means the period commencing January 1, 1998 and ending as of the last day of the
Fiscal Quarter for which the calculation is being made.
ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
--------------------------------------
7.1 Financial and Business Information. So long as any Advance remains
----------------------------------
unpaid, or any other Obligation remains unpaid or unperformed, or any portion of
the Commitment remains in force, the Company shall, unless the Administrative
Agent (with the approval of the Majority Banks) otherwise consents in writing,
deliver to the Banks and the Administrative Agent, at the Company's sole
expense:
(a) As soon as practicable, and in any event within 45 days after the
end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any
Fiscal Year), (i) the consolidated balance sheets of the Company and its
Subsidiaries as at the end of such Fiscal Quarter, (ii) consolidated
statements of income and (iii) consolidated statements of cash flow, in
each case described in clauses (ii) and (iii) of the Company and its
Subsidiaries for such Fiscal Quarter and for the portion of the Fiscal Year
ended with such Fiscal Quarter, all in reasonable detail. Such financial
statements shall be certified by a Senior Officer of the Company as fairly
presenting the financial condition, results of operations and changes in
financial position of the Company and its Subsidiaries in accordance with
Generally Accepted Accounting Principles (other than any requirement for
footnote disclosures), as at such date and for such periods, subject only
to normal year-end accruals and audit adjustments;
(b) As soon as practicable, and in any event within 90 days after the
end of each Fiscal Year, (i) the consolidated balance sheets of the Company
and its Subsidiaries as at the end of such Fiscal Year, (ii) consolidated
statements of income of the Company and its Subsidiaries for such Fiscal
Year and (iii) consolidated statements of cash flow of the Company and its
Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial
statements shall be prepared in accordance with Generally Accepted
Accounting Principles, and such consolidated balance sheet and consolidated
statements shall be accompanied by a report and opinion of Ernst & Young or
other independent public accountants of recognized national standing
selected by the Company, which report and opinion shall be prepared in
accordance with generally accepted auditing standards as at such date;
51
(c) Promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent
to the shareholders of the Company, and copies of all annual, regular,
periodic and special reports and registration statements which the Company
or a Subsidiary of the Company may file or be required to file under
Sections 13 or 15(d) of the Securities Exchange Act of 1934;
(d) As soon as practicable, and in any event within five (5) Banking
Days after a Senior Officer of the Company obtains actual knowledge of the
existence of any condition or event which constitutes a Default or Event of
Default, written notice specifying the nature and period of existence
thereof and specifying what action the Company or any of its Subsidiaries
is taking or proposes to take with respect thereto;
(e) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event defined in clauses (i) through (vii) or (xi)
of the definition thereof involving Title IV or ERISA that could reasonably
be expected to result in material liability to the Company or its
Subsidiaries or any ERISA Event that could reasonably be expected to result
in a Material Adverse Effect, a written notice specifying the nature
thereof, what action the Company or any of its ERISA Affiliates has taken,
is taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the Department
of Labor or the PBGC with respect thereto;
(f) With reasonable promptness, copies of (a) each Schedule B
(Actuarial Information) to the annual report, if any (Form 5500 Series),
filed by the Company or any of its Current ERISA Affiliates with the
Internal Revenue Service with respect to each Pension Plan; (b) all notices
received by the Company or any of its Current ERISA Affiliates from the
sponsor of a Multiemployer Plan to which a Current ERISA Affiliate
contributes concerning an ERISA Event defined in clauses (i) through (vii)
or (xi) of the definition thereof; and (c) such other documents or
governmental reports or filings relating to any Employee Benefit Plan as
the Administrative Agent shall reasonably request; and
(g) Such other material information directly related to any Borrower's
ability to meet its Obligations hereunder as from time to time may be
reasonably requested by the Administrative Agent or the Majority Banks.
7.2 Compliance Certificates. So long as any Advance remains unpaid, or
-----------------------
any other Obligation remains unpaid or unperformed, or any portion of the
Commitment remains outstanding, the Company shall, unless the Majority Banks
52
otherwise consent, deliver to the Administrative Agent, at the Company's sole
expense, concurrently with the financial statements required pursuant to
Sections 7.1(a) and 7.1(b), a Compliance Certificate signed by a Senior Officer
-------------- -----
of the Company, including calculations as set forth therein.
ARTICLE 8
CONDITIONS
----------
8.1 Conditions to Effectiveness. The Credit Agreement and the Commitments
---------------------------
of the Banks hereunder shall be effective on the date on which each of the
following conditions precedent, (unless the Administrative Agent, acting at the
direction of the Majority Banks, otherwise consents in writing) shall have been
satisfied:
(a) The Administrative Agent shall have received all of the following,
each of which shall be originals unless otherwise specified, each in form
and substance satisfactory to the Administrative Agent, the Issuing Bank
and the Banks:
(1) executed counterparts of this Agreement, sufficient in number
for distribution to the Banks and the Borrowers;
(2) the Committed Advance Notes dated the Closing Date and executed
by each Borrower in favor of each Bank, each in a principal amount
equal to that Bank's Pro Rata Share of the Commitment;
(3) the Competitive Advance Notes dated the Closing Date and
executed by each Borrower in favor of each Bank, each in the principal
amount of $150,000,000;
(4) A certified copy of the Certificate of Incorporation of each
Borrower, together with a good standing certificate from the Secretary
of State of the State of incorporation of each Borrower and, to the
extent generally available, a certificate or other evidence of good
standing as to payment of any applicable franchise or similar taxes
from the appropriate taxing authority of each of such states, each
dated a recent date prior to the Closing Date;
(5) Copies of each Borrower's Bylaws, certified as of the Closing
Date by the corporate secretary or an assistant secretary of each such
Borrower;
(6) Resolutions of the Board of Directors of each Borrower
approving and authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents to which each such
Borrower is a
53
party, certified as of the Closing Date by the corporate secretary or
an assistant secretary of each such Borrower as being in full force
and effect without modification or amendment;
(7) Signature and incumbency certificates of the officers of each
Borrower executing this Agreement and the other Loan Documents;
(8) the favorable written opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.,
General Counsel to the Company, substantially in the form of Exhibit
-------
G-1, together with copies of any officer's certificate or opinion of
---
another counsel or law firm specifically identified and expressly
relied upon by such counsel in its opinion;
(9) the favorable written opinion of O'Melveny & ▇▇▇▇▇ LLP, counsel
to the Administrative Agent, substantially in the form of Exhibit G-2;
-----------
(10) a Certificate of a Senior Officer of the Company certifying
that the conditions specified in Sections 8.1(b), 8.1(c), and 8.1(d)
-------------- ----- -----
have been satisfied; and
(11) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent reasonably may require.
(b) The representations and warranties of the Borrowers contained in
Article 4 shall be true and correct.
---------
(c) Each Borrower shall be in compliance with all the terms and
provisions of the Loan Documents.
(d) The Company shall have repaid in full the indebtedness to the
lenders under the Existing Loan Documents, as well as all interest, costs,
fees and expenses associated therewith, and the commitment to lend under
the Existing Loan Documents shall have been terminated.
(e) The Company shall have paid to the Arranger and the Administrative
Agent the fees payable on the date of this Agreement referred to in
Section 3.3.
-----------
8.2 Any Advance and Any Letter of Credit. The obligation of each Bank to
------------------------------------
make any Competitive Advance (including the initial Advance), after acceptance
of a Competitive Bid of such Bank in accordance with Section 2.4, or to make any
Committed Advance, and the obligation of the Issuing Bank to issue any Letter of
Credit (including the initial Letter of Credit), is subject to the following
conditions precedent (unless the Administrative Agent, acting at the direction
of the Majority Banks, otherwise consents in writing):
54
(a) except as disclosed by the Company and approved in writing by the
------
Administrative Agent, acting at the direction of the Majority Banks, the
representations and warranties contained in Article 4, other than Sections
--------- --------
4.4 and 4.8, and the first sentence of Section 4.6, shall be true and
----------- -----------
correct in all material respects on and as of the date of the Advance or
the issuance of the Letter of Credit, as the case may be, as though made on
that date (except to the extent such representations and warranties
------
specifically relate to an earlier date in which case they shall be true and
correct in all material respects as of such earlier date);
(b) except for (a) any matter fully covered (subject to applicable
------
deductibles and retentions) by insurance for which the insurance carrier
has assumed full responsibility, and (b) matters described in clauses (b)
or (c) of Section 4.8 on the Closing Date, there shall be no actions,
-----------
suits, proceedings or investigations pending as to which the Company or any
of its Subsidiaries have been served or have received notice or, to the
best knowledge of the Company, threatened against the Company or any of its
Subsidiaries or any Property of any of them before any Governmental Agency
which could reasonably be expected to constitute a Material Adverse Effect;
and
(c) the Administrative Agent shall have timely received a Request for
Loan in compliance with Article 2 (or telephonic request for loan referred
---------
to in the second sentence of Section 2.1(b), if applicable) or Request for
-------------
Letter of Credit in compliance with Article 2, if applicable.
---------
ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
-----------------------------------------------------
9.1 Events of Default. The existence or occurrence of any one or more of
-----------------
the following events, whatever the reason therefor and under any circumstances
whatsoever, shall constitute an "Event of Default":
----------------
(a) Any Borrower fails to pay any principal on any of the Notes, or
any portion thereof, on the date when due; or
(b) Any Borrower (i) fails to pay any interest on any of the Notes, or
any portion thereof, or (ii) fails to pay any other fee or amount payable
to the Administrative Agent, the Banks or the Issuing Bank under any Loan
Document, or any portion thereof, in each case within five (5) Banking Days
after demand therefor; or
(c) Any failure to comply with Section 7.1(d) that is materially
--------------
adverse to the interests of the Administrative Agent or the Banks; or
55
(d) Any Borrower fails to perform or observe any other covenant or
agreement contained in any Loan Document on its part to be performed or
observed within thirty (30) days after the giving of notice by the
Administrative Agent or the Majority Banks of such Default; provided,
--------
however, that any failure to observe any of the covenants contained in
-------
Sections 6.2 and 6.4, shall constitute an immediate Event of Default
------------ ---
hereunder; provided, further, that any failure to observe any of the
-------- -------
covenants contained in Section 6.5 shall constitute an Event of Default
-----------
upon notice from the Administrative Agent (acting on the direction of the
Majority Banks) to the Company; and provided further that any failure to
-------- -------
observe any of the covenants contained in Sections 6.7 and 6.8 shall
------------ ---
constitute an Event of Default five (5) Banking Days after knowledge by the
Company of such Default (other than as a result of the giving of notice by
the Administrative Agent or the Majority Banks as hereinafter provided) or,
if earlier, the giving of notice by the Administrative Agent or the
Majority Banks of such Default; or
(e) Any representation or warranty made in this Agreement, any Notes,
any Request for Loan, any Agreement to Participate, any Request for Letter
of Credit or any Competitive Bid Request was, based on the facts and
circumstances reasonably known to the Borrower at the time such
representation and warranty was made, incorrect when made or reaffirmed in
any respect that is materially adverse to the interests of the Banks; or
(f) The Company or any of its Subsidiaries (i) fails to pay the
principal, or any principal installment, or any interest or fees or any
other amount of any present or future indebtedness (other than under the
----------
Notes) for borrowed money in an amount in excess of the Cross-Default
Amount, or any guaranty of present or future indebtedness for borrowed
money in an aggregate amount in excess of the Cross-Default Amount, on its
part to be paid, when due (or within any stated grace period), whether at
the stated maturity, upon acceleration, by reason of required prepayment or
otherwise or (ii) fails to perform or observe any other material term,
covenant or agreement on its part to be performed or observed, or suffers
any event to occur, and such failure or event continues after the
applicable grace period, if any, and is not waived, in connection with any
present or future indebtedness for borrowed money in an amount in excess of
the Cross-Default Amount, or of any guaranty of present or future
indebtedness for borrowed money in excess of the Cross-Default Amount, if
as a result of such failure or sufferance any holder or holders thereof (or
an agent or trustee on its or their behalf) has the right to declare such
indebtedness due before the date on which it otherwise would become due; or
56
(g) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement of the Banks or satisfaction in
full of all the Obligations, ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and void, invalid
or unenforceable in any respect which, in any such event in the reasonable
opinion of the Majority Banks, is materially adverse to the interests of
the Banks; or any Borrower denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or
rescind same; or
(h) A judgment against the Company or any of its Subsidiaries is
entered for the payment of money in excess of $50,000,000 and, absent
procurement of a stay of execution, such judgment remains unstayed,
unbonded or unsatisfied for sixty (60) calendar days after the date of
entry of judgment; or
(i) The Company, any Borrower or any other Subsidiary of the Company
the Shareholder's Equity of which, as shown on the most recent consolidated
balance sheet, equals or exceeds 10% of the Shareholder's Equity of the
Company and its Consolidated Subsidiaries as shown on such consolidated
balance sheet, institutes or consents to any proceeding under a Debtor
Relief Law relating to it or to all or any part of its Property, or is
unable or admits in writing its inability to pay its debts as they mature,
or makes an assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all
or any part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of that Person and the appointment
continues undischarged or unstayed for sixty (60) calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to all
or any part of its Property is instituted without the consent of that
Person and continues undismissed or unstayed for sixty (60) calendar days;
or any judgment, writ, warrant of attachment or execution or similar
process is issued or levied against all or any material part of the
Property of any such Person and is not released, vacated or fully bonded
within sixty (60) calendar days after its issue or levy; or any order for
relief shall be entered in respect of the Company or any Borrower or any
such Subsidiary; or
(j) (i) Any Person or two or more Persons acting in concert shall
acquire beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934) directly or indirectly, of securities of the Company (or other
securities convertible into such securities)
57
representing 30% or more of the combined voting power of all securities of
the Company entitled to vote in the election of directors, other than
securities having such power only by reason of the happening of a
contingency; or (ii) during any period of up to 12 consecutive months,
commencing before or after the date of this Agreement, individuals who at
the beginning of such 12-month period were directors of the Company, or
whose nomination for election to the Board of Directors of the Company was
recommended or approved by a vote of at least a majority of the directors
then still in office who were directors of the Company on the first day of
such period, shall cease for any reason to constitute a majority of the
Board of Directors of the Company; (iii) or any Person or two or more
Persons acting in concert shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement which upon consummation
will result in its or their acquisition of, control over securities of the
Company (or other securities convertible into such securities) representing
30% or more of the combined voting power of all securities of the Company
entitled to vote in the election of directors, other than securities having
such power only by reason of the happening of a contingency; provided,
--------
however, that there shall not be an Event of Default pursuant to
-------
subsections (i) or (iii) above with respect to any Persons who on the date
hereof meet the requirements set forth in said subsections (i) or (iii); or
(k) there shall occur one or more ERISA Events which individually or
in the aggregate results in or might reasonably be expected to result in
liability of the Company, a Subsidiary or any of their Current ERISA
Affiliates in excess of $50,000,000 during the term of this Agreement; or
there shall exist an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all
Pension Plans with respect to which the Company or a Subsidiary has any
financial liability, including potential joint and several liability in the
event any such Pension Plan were to terminate (excluding for purposes of
such computation any Pension Plans with respect to which assets exceed
benefit liabilities), which exceeds $50,000,000.
9.2 Remedies Upon Event of Default. Without limiting any other rights or
------------------------------
remedies of the Administrative Agent, the Issuing Bank or the Banks provided for
elsewhere in this Agreement, or the Loan Documents, or by applicable Law, or in
equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 9.1(i):
--------------
58
(1) the commitment to make Advances, issue Letters of Credit and
all other obligations of the Administrative Agent, the Banks or the
Issuing Bank and all rights of the Borrowers and any other Parties
under the Loan Documents shall be suspended without notice to or
demand upon any Borrower, which are expressly waived by the Borrowers,
except that the Majority Banks (or all of the Banks, in the case of an
------
Event of Default described in Sections 9.1(a) or 9.1(b)) may waive the
--------------- ------
Event of Default or, without waiving, determine, upon terms and
conditions satisfactory to the Majority Banks (or all of the Banks, as
the case may be), to reinstate the Commitment and make further
Advances and issue additional Letters of Credit, which waiver or
determination shall apply equally to, and shall be binding upon, all
the Banks and the Issuing Bank; and
(2) the Majority Banks may request the Issuing Bank to, and the
Issuing Bank thereupon shall, demand immediate deposit by the
Borrowers into an account designated by the applicable Issuing Bank of
Cash in an amount equal to the aggregate effective face amount of all
outstanding Letters of Credit issued by it; and
(3) the Majority Banks may request the Administrative Agent to,
and the Administrative Agent thereupon shall, terminate the Commitment
and declare all or any part of the unpaid principal of all Notes, all
interest accrued and unpaid thereon and all other amounts payable
under the Loan Documents to be forthwith due and payable, whereupon
the same shall become and be forthwith due and payable, without
protest, presentment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by the Borrowers.
(b) Upon the occurrence of any Event of Default described in Section
-------
9.1(i):
-----
(1) the commitment to make Advances, issue Letters of Credit and
all other obligations of the Administrative Agent or the Banks and all
rights of the Borrowers and any other Parties under the Loan Documents
shall terminate without notice to or demand upon any Borrower, which
are expressly waived by the Borrowers; and
(2) an amount equal to the aggregate effective face amount of all
outstanding Letters of Credit shall be forthwith due and payable to
the Issuing Bank, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are waived by the
Borrowers; and
59
(3) the unpaid principal of all Notes, all interest accrued and
unpaid thereon and all other amounts payable under the Loan Documents
shall be forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of which
are expressly waived by the Borrowers.
(c) Upon the occurrence of any Event of Default, the Banks and the
Administrative Agent, or any of them, without notice to or demand upon any
Borrower, which are expressly waived by the Borrowers, may proceed to
protect, exercise and enforce their rights and remedies under the Loan
Documents against the Borrowers and any other party and such other rights
and remedies as are provided by Law or equity.
(d) The order and manner in which the Banks' rights and remedies are
to be exercised shall be determined by the Majority Banks in their sole
discretion, and all payments received by the Administrative Agent and the
Banks, or any of them, shall be applied first to the costs and expenses
(including attorneys' fees and disbursements) of the Administrative Agent,
acting as Administrative Agent, and of the Banks, and thereafter paid pro
rata to the Banks in the same proportions that the aggregate Obligations
owed to each Bank under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Banks, without
priority or preference among the Banks. Regardless of how each Bank may
treat payments for the purpose of its own accounting, for the purpose of
computing the Borrowers' Obligations hereunder and under the Notes,
payments shall be applied first, to the costs and expenses of the
-----
Administrative Agent, acting as Administrative Agent, and the Banks, as set
forth above, second, to the payment of accrued and unpaid interest due
------
under any Loan Documents to and including the date of such application
(ratably, and without duplication, according to the accrued and unpaid
interest due under each of the Loan Documents), and third, to the payment
-----
of all other amounts (including principal and fees) then owing to the
Administrative Agent or the Banks under the Loan Documents. No application
of payments will cure any Event of Default, or prevent acceleration, or
continued acceleration, of amounts payable under the Loan Documents, or
prevent the exercise, or continued exercise, of rights or remedies of the
Banks hereunder or thereunder or at law or in equity.
(e) Upon the occurrence of an Event of Default resulting from or
resulting in the default by the Company in the repayment of its Eurodollar
Rate Loans when required by the terms of this Agreement, the Company shall
compensate each Bank in accordance with Section 3.8(c).
--------------
60
ARTICLE 10
THE ADMINISTRATIVE AGENT
------------------------
10.1 Appointment and Authorization. Each Bank and the Issuing Bank hereby
-----------------------------
irrevocably appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers under the Loan Documents as
are delegated to the Administrative Agent by the terms thereof or are reasonably
incidental, as determined by it, thereto. This appointment and authorization is
intended solely for the purpose of facilitating the servicing of the Advances
and does not constitute appointment of the Administrative Agent as trustee for
any Bank or the Issuing Bank or as representative of any Bank or the Issuing
Bank for any other purpose and, except as specifically set forth in the Loan
------
Documents to the contrary, the Administrative Agent shall take such action and
exercise such powers only in an administrative and ministerial capacity. The
Administrative Agent is the agent of the Banks and the Issuing Bank only and
does not assume any agency relationship with any Borrower, express or implied.
10.2 Administrative Agent and Affiliates. The Administrative Agent and
-----------------------------------
its Affiliates (and each successor Administrative Agent) have the same rights
and powers under the Loan Documents as any other Bank and may exercise the same
as though it were not the Administrative Agent to the extent either the
Administrative Agent or an Affiliate has executed this Agreement as a Bank or
has executed an Assignment Agreement as Assignee. The Administrative Agent and
its Affiliates (and each successor Administrative Agent) may accept deposits
from, lend money to and generally engage in any kind of banking, trust or other
business with any Borrower, any subsidiary thereof, or any Affiliate of the
Company or any Subsidiary thereof, without any duty to account therefor to the
Banks. CUSA (and each successor Administrative Agent) need not account to any
Bank for any monies received by it for reimbursement of its costs and expenses
as Administrative Agent hereunder, or for any monies received by it or any
Affiliate in its capacity as a Bank hereunder. The Administrative Agent shall
not be deemed to hold a fiduciary relationship with any Bank and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
10.3 Proportionate Interest of the Banks in any Collateral. The
-----------------------------------------------------
Administrative Agent, on behalf of all the Banks, shall hold in accordance with
the Loan Documents all items of any collateral or interests therein received or
held by the Administrative Agent. Subject to the Administrative Agent's and the
Banks' rights to reimbursement for their costs and expenses hereunder (including
---------
attorneys' fees and disbursements and other professional services) and subject
to the application of payments in accordance with Section 9.2(d), each Bank
-------------
shall have an interest in any collateral or interests therein in the same
61
proportions that the aggregate Obligations owed such Bank under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Banks, without priority or preference among the Banks.
10.4 Banks' Credit Decisions. Each Bank agrees that it has, independently
-----------------------
and without reliance upon either Arranger, the Administrative Agent, any other
Bank or the directors, officers, agents, employees or attorneys of either
Arranger or the Administrative Agent or of any other Bank, and instead in
reliance upon information supplied to it by or on behalf of the Borrowers and
upon such other information as it has deemed appropriate, made its own
independent credit analysis and decision to enter into this Agreement. Each Bank
also agrees that it shall, independently and without reliance upon either
Arranger or the Administrative Agent, any other Bank or the directors, officers,
agents, employees or attorneys of either Arranger or the Administrative Agent or
of any other Bank, continue to make its own independent credit analyses and
decisions in acting or not acting under the Loan Documents.
10.5 Action by the Administrative Agent.
----------------------------------
(a) The Administrative Agent may assume that no Default has occurred
and is continuing, unless the Administrative Agent has failed to receive
any payment due from any Borrower hereunder within the time required under
subsection 9.1(a) or subsection 9.1(b), or the Administrative Agent has
received notice from the Company stating the nature of the Default or has
received notice from a Bank stating the nature of the Default and that such
Bank considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations under the Loan
Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the Loan
------
Documents and as long as the Administrative Agent may assume that no Event
of Default has occurred and is continuing, the Administrative Agent may,
but shall not be required to, exercise its discretion to act or not act,
except that the Administrative Agent shall be required to act or not act
------
upon the instructions of the Majority Banks (or of all the Banks, to the
extent required by Section 13.2) and those instructions shall be binding
------------
upon the Administrative Agent and all the Banks, provided that the
--------
Administrative Agent shall not be required to act or not act if to do so
would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.
62
(d) If the Administrative Agent has received a notice specified in
clause (a), the Administrative Agent shall give notice thereof to the Banks
and shall act or not act upon the instructions of the Majority Banks (or of
all the Banks, to the extent required by Section 13.2), provided that the
------------ --------
Administrative Agent shall not be required to act or not act if to do so
would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent, and except that
------
if the Majority Banks (or all the Banks, if required under Section 13.2)
------------
fail, for five (5) Banking Days after the receipt of notice from the
Administrative Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its sole discretion, may act or not act as it
deems advisable for the protection of the interests of the Banks.
(e) The Administrative Agent shall have no liability to any Bank for
acting, or not acting, as instructed by the Majority Banks (or all the
Banks, if required under Section 13.2), notwithstanding any other provision
------------
hereof.
10.6 Liability of the Administrative Agent. Neither the Administrative
-------------------------------------
Agent, nor any of its directors, officers, agents, employees or attorneys shall
be liable for any action taken or not taken by them under or in connection with
the Loan Documents, except for their own gross negligence or willful misconduct.
------
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof until the
Administrative Agent receives notice of the assignment or transfer thereof,
in form satisfactory to the Administrative Agent, signed by the payee, and
may treat each Bank as the owner of that Bank's interest in the Obligations
for all purposes of this Agreement until the Administrative Agent receives
notice of the assignment or transfer thereof, in form satisfactory to the
Administrative Agent, signed by that Bank.
(b) May consult with legal counsel (including in-house legal counsel),
---------
accountants (including in-house accountants) and other professionals or
---------
experts selected by it, or with legal counsel, accountants or other
professionals or experts for the Company and/or its subsidiaries or the
Banks, and shall not be liable for any action taken or not taken by it in
good faith in accordance with any advice of such legal counsel, accountants
or other professionals or experts.
(c) Shall not be responsible to any Bank for any statement, warranty
or representation made in any of the Loan Documents or in any notice,
certificate, report,
63
request or other statement (written or oral) given or made in connection
with any of the Loan Documents.
(d) Shall have no duty to ask or inquire as to the performance or
observance by the Company or its Subsidiaries of any of the terms,
conditions or covenants of any of the Loan Documents or to inspect any
collateral or the Property, books or records of the Company or its
Subsidiaries.
(e) Will not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency
or value of any Loan Document, any other instrument or writing furnished
pursuant thereto or in connection therewith, or any collateral.
(f) Will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, request or
other instrument or writing believed by it to be genuine and signed or sent
by the proper party or parties.
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by the Company or any Subsidiary or
Affiliate thereof or paid or payable to or received or receivable from any
Bank under any Loan Document, including, without limitation, principal,
---------
interest, commitment fees, Advances and other amounts; provided that,
--------
promptly upon discovery of such an error in computation, the Administrative
Agent, the Banks and (to the extent applicable) the Company and/or its
Subsidiaries or Affiliates shall make such adjustments as are necessary to
correct such error and to restore the parties to the position that they
would have occupied had the error not occurred; provided further that, the
-------- -------
obligations of Borrowers under this Section 10.6(g) shall survive for sixty
(60) days following the termination of this Agreement and such obligations
shall not, from and after the termination of this Agreement, be deemed
Obligations for any purpose under the Loan Documents.
10.7 Indemnification. Each Bank shall, ratably in accordance with its
---------------
Pro Rata Share of the Commitment, indemnify and hold the Administrative Agent,
the Arranger and their directors, officers, agents, employees and attorneys
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (including, without limitation, attorneys' fees and
---------
disbursements) that may be imposed on, incurred by or asserted against them in
any way relating to or arising out of the Loan Documents (other than losses
incurred by reason of the failure of the Borrowers to pay the indebtedness
represented by the Notes and interest thereon) or any action taken or not taken
by them as Administrative Agent or Arranger thereunder, except such as result
------
from its own gross
64
negligence or willful misconduct. Without limitation on the foregoing, each Bank
shall reimburse the Administrative Agent and each Arranger upon demand for that
Bank's ratable share of any cost or expense incurred by the Administrative Agent
and such Arranger in connection with the negotiation, preparation, execution,
delivery, amendment, waiver, restructuring, reorganization (including a
---------
bankruptcy reorganization), enforcement or attempted enforcement of the Loan
Documents, to the extent that the Company or any other party is required by
Section 13.3 to pay that cost or expense but fails to do so upon demand. Nothing
------------
in this Section shall entitle the Administrative Agent and the Arranger to
recover any amount from the Banks if and to the extent that such amount has
theretofore been recovered from the Company or any of its Subsidiaries.
10.8 Successor Administrative Agent. The Administrative Agent may resign
------------------------------
as such at any time upon prior written notice to the Company and the Banks, to
be effective upon a successor's acceptance of appointment as Administrative
Agent. The Majority Banks at any time may remove the Administrative Agent by
written notice to that effect to be effective on such date as the Majority Banks
designate. In either event: (a) the Majority Banks, with the written consent of
the Company (such consent not to be unreasonably withheld), shall appoint a
successor Administrative Agent, who must be from among the Banks, provided that
--------
any resigning Administrative Agent shall be entitled to appoint a successor
Administrative Agent from among the Banks, subject to acceptance of appointment
by that successor Administrative Agent, if the Majority Banks have not appointed
a successor Administrative Agent within thirty (30) days after the date the
resigning Administrative Agent gave notice of resignation; (b) upon a successor
acceptance of appointment as Administrative Agent, the successor will thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning Administrative Agent or the removed Administrative Agent; and
(c) upon the effectiveness of any resignation or removal, the resigning
Administrative Agent or the removed Administrative Agent thereupon will be
discharged from its duties and obligations thereafter arising under the Loan
Documents other than obligations arising as a result of any action or inaction
of the resigning Administrative Agent or the removed Administrative Agent prior
to the effectiveness of such resignation or removal. Notwithstanding the
foregoing, no consent of the Company shall be required under this Section 10.8
in connection with any change in the Administrative Agent at any time when an
Event of Default has occurred and is continuing under this Agreement.
10.9 No Obligations of Borrowers. Nothing contained in this Article 10
--------------------------- ----------
shall be deemed to impose upon the Borrowers any obligation in respect of the
due and punctual performance by the Administrative Agent of its obligations to
the Banks under any provision of this Agreement, and the Borrowers shall have no
liability to the Administrative Agent or any of the Banks in
65
respect of any failure by the Administrative Agent or any Bank to perform any of
its obligations to the Administrative Agent or the Banks under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by a Borrower to the
Administrative Agent for the account of the Banks, such Borrower's obligations
to the Banks in respect of such payments shall be deemed to be satisfied upon
the making of such payments to the Administrative Agent in the manner provided
by this Agreement.
10.10 Arranger. The Arranger shall have no duties or obligations under
--------
the Loan Documents or otherwise in connection with the Loans.
ARTICLE 11
COMPANY GUARANTY
----------------
11.1 The Guaranty. The Company hereby unconditionally guaranties the due
------------
and punctual payment of all obligations (including, without limitation, the
obligation to pay the principal amount of and interest on each Advance) of each
Borrowing Subsidiary arising under this Agreement when due, whether by required
prepayment, declaration, demand or otherwise (including amounts which would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. (S) 362(a)) (the "Borrowing Subsidiary
--------------------
Obligations"), and agrees to pay any and all costs and expenses (including fees
-----------
and disbursements of counsel and allocated costs of internal counsel) incurred
by the Administrative Agent and the Banks in enforcing any rights under this
Article 11. The obligations of the Company under this Article 11, as they may be
amended, modified or supplemented from time to time, are sometimes referred to
in this Article 11 as this "Guaranty".
--------
The Company agrees that this Guaranty constitutes a guaranty of payment
when due and not of collection and waives any right to require that any resort
be had by the Administrative Agent or any Bank to any security held for payment
of the Borrowing Subsidiary Obligations or to any balance of any deposit account
or credit on the books of the Administrative Agent or any Bank in favor of the
Company or any Borrowing Subsidiary or any other Person.
The Company agrees, in furtherance of the foregoing and not in limitation
of any other right which the Administrative Agent or any Bank may have at law or
in equity against the Company by virtue hereof, upon the failure of any
Borrowing Subsidiary to pay any of its Borrowing Subsidiary Obligations when and
as the same shall become due, whether by required prepayment, declaration,
demand or otherwise (including amounts which would become due but for the
operation of the automatic
66
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. (S) 362(a)), the
Company will forthwith pay, or cause to be paid, in cash, to the Administrative
Agent for the ratable benefit of the Banks an amount equal to the sum of the
unpaid principal amount of such Borrowing Subsidiary Obligations then due as
aforesaid, accrued and unpaid interest on such Borrowing Subsidiary Obligations
(including, without limitation, interest which, but for the filing of a petition
in bankruptcy with respect to such Borrowing Subsidiary (including without
limitation, the Company), would accrue on such Borrowing Subsidiary
Obligations).
11.2 Guaranty Unconditional. The obligations of the Company under this
----------------------
Guaranty shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of any Borrowing Subsidiary under this
Agreement, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this Agreement;
(c) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of any Borrowing Subsidiary under
this Agreement;
(d) the failure of the Administrative Agent or any Bank to assert any
claim or demand or to enforce any right or remedy against any Borrowing
Subsidiary, the Company or any other Person under the provisions of this
Agreement or any other agreement or otherwise;
(e) any change in the corporate existence, structure or ownership of
any Borrowing Subsidiary or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any Borrowing Subsidiary or its assets
or any resulting release or discharge of any obligation of any Borrowing
Subsidiary contained in this Agreement;
(f) the existence of any claim, set-off or other rights which the
Company may have at any time against any other Borrower, the Administrative
Agent, any Bank or any other Person, whether in connection herewith or any
unrelated transactions;
(g) the invalidity or unenforceability relating to or against any
Borrowing Subsidiary for any reason of this Agreement, or any provision of
applicable law or regulation purporting to prohibit the payment by any
Borrowing Subsidiary of the principal of or interest on any Advance or any
other amount payable by any Borrowing Subsidiary under
67
this Agreement, or the termination of any Borrowing Subsidiary's status as
a Borrowing Subsidiary hereunder;
(h) the termination of a Borrowing Subsidiary's status hereunder as a
"Borrower" pursuant to Section 12.2;
------------
(i) any other act or omission to act or delay of any kind by any
Borrowing Subsidiary, the Administrative Agent, any Bank or any other
Person or any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable discharge of
the obligations of the Company hereunder.
The obligations of the Company under this Guaranty shall not be subject to
any reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise of any of the Borrowing Subsidiary Obligations, and shall not be
subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of any of
the Borrowing Subsidiary Obligations, discharge of any Borrowing Subsidiary from
any of the Borrowing Subsidiary Obligations in a bankruptcy or similar
proceeding, or otherwise. Without limiting the generality of the foregoing, the
obligations of the Company under this Guaranty shall not be discharged or
impaired or otherwise affected by the failure of the Administrative Agent or any
Bank to assert any claim or demand or to enforce any remedy under this Agreement
or any document or instrument executed by any Borrowing Subsidiary in connection
herewith, by any waiver or modification of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Borrowing Subsidiary
Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
the Company or which would otherwise operate as a discharge of the Company as a
matter of law or equity.
11.3 Discharge Only Upon Payment in Full; Reinstatement in Certain
-------------------------------------------------------------
Circumstances. The obligations of the Company under this Article 11 shall
-------------
remain in full force and effect until the Commitments shall have terminated, all
Letters of Credit have expired and the principal of and interest on the Advances
and all other amounts payable by the Borrowers under this Agreement shall have
been paid in full. If at any time any payment of the principal of or interest
on any Advance or any other amount payable by the Borrowers under this Agreement
is rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of any Borrower or otherwise, the obligations of
the Company under this Article 11 shall be reinstated as though such payment had
----------
been due but not made at such time.
68
11.4 Waivers by the Company. With respect to this Article 11, the Company
----------------------
hereby waives for the benefit of the Administrative Agent and the Banks:
(a) any right to require the Administrative Agent or any Bank, as a
condition of payment or performance by the Company under this Guaranty to
(i) proceed against any Borrowing Subsidiary, any other guarantor of the
obligations of any Borrowing Subsidiary under any other agreement or
guaranty or any other Person, (ii) proceed against or exhaust any security
held from any Borrowing Subsidiary, any other guarantor or any other
Person, or (iii) pursue any other remedy in the power of the Administrative
Agent or any Bank whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority
or any disability or other defense of any Borrowing Subsidiary including,
without limitation, any defense based on or arising out of the lack of
validity or unenforceability of the Borrowing Subsidiary Obligations or any
agreement or instrument relating thereto or by reason of the cessation from
any cause of the liability of any Borrowing Subsidiary other than
indefeasible payment in full of the Borrowing Subsidiary Obligations;
(c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal, or based upon
the Administrative Agent's or any Bank's errors or omissions in the
administration of the Borrowing Subsidiary Obligations, except behavior
------
which amounts to bad faith;
(d) any (i) principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of this Guaranty, any
legal or equitable discharge of its obligations hereunder and the benefit
of any statute of limitations affecting its liability hereunder or the
enforcement thereof, (ii) rights to set-offs, recoupments and
counterclaims, (iii) rights to deferral or modification of the Company's
obligations hereunder by reason of any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, (iv) promptness,
diligence and any requirement that the Administrative Agent or any Bank
protect, secure, perfect or insure any security interest or lien or any
property subject thereto or exhaust any right or take any action against
any Borrowing Subsidiary or any other Person or any collateral;
(e) notice, demand, presentment, protests, notices of protest, notices
of dishonor and notices of any action or inaction, including acceptance of
this Guaranty, notices of default under this Agreement or any agreement or
instrument related thereto, notice of any renewal, extension or
69
modification of the Borrowing Subsidiary Obligations or any agreement
related thereto, notice of any other extension of credit to any Borrowing
Subsidiary; and
(f) any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerates guarantors or sureties, or
which may conflict with the terms of this Guaranty including, without
limitation, the provisions of California Civil Code Sections 2809, 2810,
2819, 2839, 2845, 2846, 2847, 2848, 2849, 2850, 2899 and 3433.
11.5 Subrogation, Etc. Upon payment by the Company of any sum to the
----------------
Administrative Agent for the ratable benefit of any Bank as provided above, so
long as any of the Borrowing Subsidiary Obligations of a Borrowing Subsidiary
shall remain outstanding hereunder, all rights of the Company against such
Borrowing Subsidiary arising as a result thereof, by way of right of subrogation
or otherwise, shall in all respects be subordinate and junior in right of
payment to the prior indefeasible payment in full of all the Borrowing
Subsidiary Obligations of that Borrowing Subsidiary to the Administrative Agent
and the Banks. In furtherance of the foregoing, and not in limitation thereof,
the Company agrees that until the Borrowing Subsidiary Obligations of a
Borrowing Subsidiary shall have been paid in full, the Commitment has terminated
and all Letters of Credit issued for the account of such Borrowing Subsidiary
have expired, the Company shall withhold exercise of any right of subrogation,
or any right to enforce any remedy which the Administrative Agent or any Bank
may have against that Borrowing Subsidiary. If any amount shall be paid to the
Company on account of such subrogation rights at any time prior to the date when
the Borrowing Subsidiary Obligations of such Borrowing Subsidiary have been paid
in full, the Commitment has terminated and all Letters of Credit issued for the
account of such Borrowing Subsidiary have expired, such amount shall be held in
trust for the benefit of the Banks and shall be paid to the Administrative Agent
for the benefit of the Banks to be credited and applied upon the Borrowing
Subsidiary Obligations of such Borrowing Subsidiary, whether matured or
unmatured, in accordance with the terms of the Credit Agreement or to be held by
the Administrative Agent for the benefit of the Banks as collateral security for
any Obligations thereafter existing.
ARTICLE 12
ADDITIONAL BORROWERS; TERMINATION OF BORROWERS
----------------------------------------------
12.1 Agreement to Participate. Any Eligible Subsidiary may become a party
------------------------
to this Agreement and become a "Borrower" for all purposes hereof on any date
after the date hereof upon the satisfaction of the following conditions:
70
(a) receipt by the Administrative Agent on or before such date of an
Agreement to Participate executed by such Eligible Subsidiary and
acknowledged and consented to by the Administrative Agent and the Company;
(b) receipt by the Administrative Agent of a certificate dated such
date from the senior financial officer of such Eligible Subsidiary to the
effect that (i) no Default has occurred and is continuing on such date,
(ii) the representations and warranties of such Eligible Subsidiary and its
Subsidiaries contained in the Agreement to Participate executed by such
Eligible Subsidiary are true, correct and complete on and as of such date,
and (iii) such Eligible Subsidiary is a wholly-owned Subsidiary set forth
in Schedule 1.2 have been satisfied;
------------
(c) receipt by the Administrative Agent on or before such date of such
additional documents it may reasonably request relating to the existence of
such Eligible Subsidiary, the corporate power and authority of such
Eligible Subsidiary, the validity of such Eligible Subsidiary's obligations
under the Agreement to Participate executed by such Eligible Subsidiary and
under this Agreement, and other matters relevant thereto and hereto, all in
form and substance satisfactory to the Administrative Agent; and
(d) receipt by the Administrative Agent on or before such date of the
Committed Advance Notes dated such date and executed by such Eligible
Subsidiary, one Note in favor of each Bank in a principal amount equal to
that Bank's Pro Rata Share of the Commitment, and the Competitive Advance
Notes dated such date and executed by such Eligible Subsidiary in favor of
each Bank, each in the principal amount of Commitment.
Each Bank hereby authorizes the Administrative Agent to sign on such Bank's
behalf an Agreement to Participate delivered pursuant to clause (a) above, and
the Company and each Bank hereby agree that, upon satisfaction by any Eligible
Subsidiary of the conditions set forth in the preceding clauses (a), (b) and
(c), such Eligible Subsidiary shall become a "Borrower" hereunder for all
purposes hereof. The Administrative Agent shall promptly notify the Banks of
whenever an Eligible Subsidiary becomes a Borrower.
12.2 Notice of Termination. Any Borrower, other than the Company, that
---------------------
has no Advances outstanding to any Bank and is not the account party on any
Letter of Credit, may cease to be a "Borrower" for the purposes of this
Agreement (and all commitments as to such Borrower shall thereupon terminate)
upon notice, in form and substance satisfactory to the Administrative Agent, by
such Borrower to the Administrative Agent; provided that such notice shall not
--------
affect any obligation of such Borrower
71
theretofore incurred. The Administrative Agent shall send prompt written notice
to each Bank of any Borrower ceasing, pursuant to this subsection, to be a
Borrower.
ARTICLE 13
MISCELLANEOUS
-------------
13.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
------------------------------
remedies of the Administrative Agent, the Issuing Bank and the Banks provided
herein or in any Note or other Loan Document are cumulative and not exclusive of
any right, power, privilege or remedy provided by Law or equity. No failure or
delay on the part of the Administrative Agent, the Issuing Bank or any Bank in
exercising any right, power, privilege or remedy may be, or may be deemed to be,
a waiver thereof; nor may any single or partial exercise of any right, power,
privilege or remedy preclude any other or further exercise of the same or any
other right, power, privilege or remedy. The terms and conditions of Article 8
---------
hereof are inserted for the sole benefit of the Administrative Agent, the
Issuing Bank and the Banks; the same may be waived in whole or in part, with or
without terms or conditions, in respect of any Loan, Competitive Advance or
Letter of Credit without prejudicing the Administrative Agent's, either Issuing
Bank's or the Banks' rights to assert them in whole or in part in respect of any
other Loan, Competitive Advance or Letter of Credit.
13.2 Amendments; Consents. No amendment, modification, supplement,
--------------------
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by any Borrower or any other party therefrom, may in any event be
effective unless the same shall be in writing and signed by the Majority Banks
(or signed by the Administrative Agent at the direction of the Majority Banks)
(and, in the case of amendments, modifications or supplements of or to any Loan
Document to which a Borrower is a party, the approval in writing of such
Borrower), and then only in the specific instance and for the specific purpose
given; and, without the approval in writing of all the Banks, no amendment,
modification, supplement, termination, waiver or consent may be effective:
(a) To extend the final maturity of any Loan or Note beyond the
Maturity Date, or reduce the rate of interest (other than any waiver of any
increase in the interest rate applicable to any of the Loans pursuant to
Section 3.9) or fees in respect of the Commitment, the Loans or the Letters
of Credit, or extend the time of payment of interest or fees in respect
thereof, or reduce the principal amount of the Obligations;
72
(b) To amend or modify the provisions of the definitions of
"Commitment", "Maturity Date", or "Majority Banks"; or this Section;
---------- ------------- --------------
(c) To release any guarantor; or
(d) To amend or modify any provision of this Agreement that expressly
requires the consent or approval of all the Banks.
In addition, no amendment, modification, supplement, termination, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Administrative Agent acting in such capacity under this Agreement
or any Note. No amendment, modification, supplement, termination, waiver or
consent shall, unless in writing and signed by the Issuing Bank, affect any
provisions hereof relating to the Letters of Credit. Any amendment,
modification, supplement, termination, waiver or consent pursuant to this
Section shall apply equally to, and shall be binding upon, all the Banks, the
Issuing Bank, the Administrative Agent and each Borrower. Copies of all
amendments, modifications, supplements, terminations, waivers and consents shall
be distributed to the Administrative Agent, each Bank, the Issuing Bank and each
Borrower.
13.3 Costs, Expenses and Taxes. The Company shall pay on demand the
-------------------------
reasonable costs and expenses (a) of the Arranger and the Administrative Agent
in connection with the negotiation, preparation, execution and delivery of the
Loan Documents (including, without limitation, the reasonable legal fees and
out-of-pocket expenses of O'Melveny & ▇▇▇▇▇ LLP), and, (b) if a Borrower
requests the amendment, waiver, supplement or modification the Loan Documents,
of the Administrative Agent and the Issuing Bank in connection with any such
amendment, waiver, supplement or modification, and (c) if any Default has
occurred, of the Administrative Agent, the Issuing Bank and the Banks in
connection with any workout, restructuring, reorganization (including a
---------
bankruptcy reorganization) and in any event enforcement or attempted enforcement
of the Loan Documents, and any matter related thereto, including, without
---------
limitation, out-of-pocket expenses and the reasonable fees and out-of-pocket
expenses of any legal counsel, independent public accountants and other outside
experts retained by the Administrative Agent, the Issuing Bank or any Bank, and
including, without limitation, any costs, expenses or fees incurred or suffered
---------
by the Administrative Agent, the Issuing Bank or any Bank in connection with or
during the course of any bankruptcy or insolvency proceedings of the Company or
any Subsidiary thereof. The Company shall pay any and all documentary and other
taxes (other than income or gross receipts taxes generally applicable to banks)
and all costs, expenses, fees and charges payable or determined to be payable in
connection with the filing or
73
recording of this Agreement, any other Loan Document or any other instrument or
writing to be delivered hereunder or thereunder, or in connection with any
transaction pursuant hereto or thereto, and shall reimburse, hold harmless and
indemnify the Arranger, the Administrative Agent, the Issuing Bank and the Banks
from and against any and all loss, liability or legal or other expense with
respect to or resulting from any delay in paying or failure to pay any tax,
cost, expense, fee or charge or that any of them may suffer or incur by reason
of the failure of any party (other than the Arranger, the Administrative Agent,
the Issuing Bank or any Bank) to perform any of its Obligations.
13.4 Obligation to Make Payments in Dollars. The obligation of the
--------------------------------------
Borrowers to make payments in dollars of the principal and interest becoming due
and payable on each Loan and each Competitive Advance, and to pay all other
Obligations hereunder, (i) shall not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment, which is expressed in or converted
into any currency other than dollars, except to the extent that such tender or
recovery shall result in the actual receipt by the Administrative Agent, the
Banks and the Issuing Bank of the full amount of dollars expressed to be payable
in respect of the principal and interest of each Loan and each Competitive
Advance and in respect of each other Obligation, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in
dollars the amount, if any, by which such actual receipt shall fall short of the
full amount of dollars so expressed to be payable and (c) shall not be affected
by judgment being obtained for any other sum due under this Agreement.
13.5 Nature of Banks' Obligations. The obligations of the Banks hereunder
----------------------------
are several and not joint or joint and several. Nothing contained in this
Agreement or any other Loan Document and no action taken by the Administrative
Agent, the Issuing Bank or the Banks or any of them pursuant hereto or thereto
may, or may be deemed to, make the Banks a partnership, an association, a joint
venture or other entity, either among themselves or with the Company or any
Affiliate of the Company. Each Bank's obligation to make any Advance pursuant
hereto is several and not joint or joint and several, and is not conditioned
upon the performance by all other Banks of their obligations to make Advances.
If any Bank defaults in its obligation to make any Advance to a Borrower after
the fulfillment of all conditions precedent to that Advance, then the Company
may terminate this Agreement with respect to that Bank upon fulfillment of each
of the following conditions:
(i) the Borrower shall have paid to the affected Bank the principal
amount of all outstanding Advances made by that Bank, together with all
accrued but unpaid interest, costs, fees and expenses related thereto; and
74
(ii) the Company shall have notified the Administrative Agent and
each of the Banks of the termination.
A default by any Bank will not increase the amount of the Commitment
attributable to any other Bank, and any Bank not in default may, if it desires,
assume in such proportion as the nondefaulting Banks agree the obligations of
any Bank in default, but is not obligated to do so. Should the Company elect,
as aforesaid, to terminate this Agreement with respect to any Bank, then the
Commitment shall automatically be reduced by a percentage equal to the Pro Rata
Share of the Commitment of the affected Bank, and the remaining Bank or Banks
shall have that Pro Rata Share in the reduced Commitment which is allocable to
their Advances.
13.6 Survival. All representations and warranties contained herein or in
--------
any other Loan Document, or in any certificate or other writing delivered by or
on behalf of any one or more of the Parties to any Loan Document, will survive
the making of the Advances hereunder and the execution and delivery of the
Notes, and have been or will be relied upon by the Administrative Agent, the
Issuing Bank and each Bank, notwithstanding any investigation made by the
Administrative Agent, the Issuing Bank or any Bank or on their behalf. The
obligations of the Company under Sections 3.7 and 3.8 shall survive for thirty
------------ ---
(30) days following the termination of this Agreement and the repayment of the
Notes.
13.7 Notices. All notices, requests, demands, directions and other
-------
communications to the Issuing Bank provided for hereunder or under any other
Loan Document must be in writing and must be mailed, telegraphed, telecopied or
delivered to: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Citibank, N.A., ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Citicorp Securities, Inc., ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. All notices, requests,
demands, and other communications to the Administration Agent provided for
hereunder or under any other Loan Document must be mailed, telegraphed,
telecopied or delivered to: Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Citibank Securities, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Except as otherwise expressly
------
provided in the Loan Documents, all notices, requests, demands, directions and
other communications provided for hereunder or under any other Loan Document
must be in writing and must be mailed, telegraphed, telecopied or delivered to
the appropriate party at the address set forth on the signature pages of this
Agreement or other applicable Loan Document or, as to any party to any Loan
Document, at any other address as may be designated by it in a written notice
sent to all other parties to such Loan Document in accordance with this Section.
Except as otherwise expressly provided in any Loan Document, if any notice,
------
request, demand, direction or other communication required or permitted by any
Loan Document is given by mail it will be effective on the earlier of receipt or
the
75
fifth calendar day after deposit in the United States mail with first class
or airmail postage prepaid; if given by telegraph or cable, when delivered to
the telegraph company with charges prepaid; if given by telecopier, when sent;
or if given by personal delivery, when delivered.
13.8 Execution of Loan Documents. Unless the Administrative Agent
---------------------------
otherwise specifies with respect to any Loan Document, this Agreement and any
other Loan Document may be executed in any number of counterparts and any party
hereto or thereto may execute any counterpart, each of which when executed and
delivered will be deemed to be an original and all of which counterparts of this
Agreement or any other Loan Document, as the case may be, when taken together
will be deemed to be but one and the same instrument. The execution of this
Agreement or any other Loan Document by any party hereto or thereto will not
become effective until counterparts hereof or thereof, as the case may be, have
been executed by all the parties hereto or thereto.
13.9 Binding Effect; Assignment. This Agreement and the other Loan
--------------------------
Documents shall be binding upon and shall inure to the benefit of the parties
hereto and thereto and their respective successors and assigns, except that a
------
Borrower and/or its Affiliates may not assign their rights hereunder or
thereunder or any interest herein or therein without the prior written consent
of all the Banks. Each Bank shall have the right in accordance with this Section
to sell, assign, pledge or transfer all or any portion of its rights hereunder
or under the Note of that Bank and to grant any participation or other interest
herein or therein; provided that no such sale, assignment, pledge, transfer or
--------
participation grant shall make any assignment which would have the effect of
result in requiring registration under the Securities Act of 1933, as amended,
or qualification under any state securities laws. Each Bank represents that it
is not acquiring the Notes with a view to the distribution thereof within the
meaning of the Securities Act of 1933, as amended (subject to any requirement
that disposition of the Notes must be within the control of such Bank). Any Bank
may assign, from time to time, any or all of its rights and obligations
hereunder and all or any portion of its share of the Commitments to an Affiliate
of that Bank or, with the approval of the Company (which approval will not be
unreasonably withheld), to any other financial institution acceptable to the
Administrative Agent, subject to the assumption by the assignee of the share of
the Commitments so assigned. Any assignment shall also require the consent of
the Issuing Bank, such consent not to be unreasonably withheld. Any such
assignment shall be evidenced by an Assignment Agreement substantially in the
form of Exhibit J, executed by each of the parties and a copy of which shall be
delivered to the Administrative Agent. Upon such execution and delivery, from
and after the effective date specified in each Assignment Agreement (y) the
assignee thereunder shall be a party hereto and, to the extent that rights
76
and obligations hereunder have been assigned to it pursuant to such Assignment
Agreement, have the rights and obligations of a Bank hereunder and (z) the Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment Agreement, relinquish its
rights and be released from its obligations under this Agreement (and, in the
case of an Assignment Agreement covering all or the remaining portion of an
assigning Bank's rights and obligations under this Agreement, such Bank shall
cease to be a party hereto). The Pro Rata Share of each Bank of the Commitments
hereunder shall be modified to reflect the Pro Rata Share of the Commitment of
such assignee and, if any such assignment occurs while any Loan is outstanding
new Notes shall, upon surrender of the assigning Bank's Notes, be issued to such
assignee and to the assigning Bank as necessary to reflect the new Pro Rata
Share of the Commitments of the Bank and of assignee. Notwithstanding any other
provision set forth in this Agreement, any Bank may assign or pledge, as
collateral or otherwise, all or any portion of its rights under this Agreement
(including without limitation, rights to payments of principal and/or interest
under the Notes held by it), but not its obligations, to any Federal Reserve
Bank or any Affiliate in order that such Affiliate may assign or pledge such
rights to any Federal Reserve Bank, in each case, without notice to or consent
from any Borrower or the Administrative Agent; provided, however, that such
-------- -------
Federal Reserve Bank or Affiliate shall not, by reason of such assignment,
become a "Bank" hereunder for any purpose whatsoever and any such Bank shall not
be released from any of its obligations hereunder as a result of such assignment
or pledge. Any Bank may grant, from time to time, a participation interest in
the rights of that Bank under its Note and this Agreement to any financial
institution, without notice to or the approval of the Administrative Agent or
the Borrowers. The grant of such a participation interest shall be on such terms
as the granting Bank determines are appropriate, provided only that (a) such
Bank's rights and obligations under this Agreement (including, without
limitation, its Commitment) shall remain unchanged, (b) such Bank shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (c) such Bank shall remain the holder of any such Note for all
purposes of the Agreement, (d) the Borrowers, the Administrative Agent and the
other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement, (e) no
participant under any such participation shall have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest (other than
increased interest following default pursuant to Section 3.9) on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, postpone the Maturity Date, or date fixed for payment of
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release the
77
Company from its Obligations under Article 11 hereof, and (f) no Borrower
shall be subject to any increased liability to any Bank pursuant to this
Agreement by virtue of such participation. No participant shall constitute a
"Bank" under this Agreement or any Loan Document, and the Borrowers shall
continue to deal solely and directly with the Administrative Agent and the
Banks.
13.10 Setoff Rights. If an Event of Default has occurred and is
-------------
continuing, the Administrative Agent, the Issuing Bank and each Bank (but only
with the consent of the Majority Banks) is hereby authorized to the fullest
extent permitted by law to setoff and apply any funds in any deposit account
maintained with it by any Borrower and/or any Property of any Borrower in its
possession against the Obligations.
13.11 Sharing of Setoffs. Each Bank severally agrees that if it, through
------------------
the exercise of any right of setoff, banker's lien or counterclaim against any
Borrower, or otherwise, receives payment, through any means, of the Obligations
held by it that is in excess of that Bank's proportionate share of the Total
Outstandings as applied to such payment, then: (a) The Bank exercising the right
of setoff, banker's lien or counterclaim or otherwise receiving such payment
shall purchase, and shall be deemed to have simultaneously purchased, from the
other Bank a participation in the Obligations held by the other Bank and shall
pay to the other Bank a purchase price in an amount so that the share of the
Obligations held by each Bank after the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of setoff, banker's
lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be
equitable to ensure that all of the Banks share any payment obtained in respect
of the Obligations ratably in accordance with each Bank's share of the
Obligations immediately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate payment obtained as a
--------
result of the exercise of the right of setoff, banker's lien, counterclaim or
otherwise is thereafter recovered from the purchasing Bank by any Borrower or
any Person claiming through or succeeding to the rights of any Borrower, the
purchase of a participation shall be rescinded and the purchase price thereof
shall be restored to the extent of the recovery, but without interest. Each Bank
that purchases a participation in the Obligations pursuant to this Section shall
from and after the purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Bank were the original owner of the Obligations purchased. Each
Borrower expressly consents to the foregoing arrangements and agrees that any
Bank holding a participation in an Obligation so purchased may exercise any and
all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Bank were the original
78
owner of the Obligation purchased; provided, however, that each Bank agrees that
-------- -------
it shall not exercise any right of set off, banker's lien or counterclaim
without first obtaining the consent of the Majority Banks.
13.12 Indemnity by the Company. The Company agrees to indemnify, save and
------------------------
hold harmless each Arranger, the Issuing Bank, the Administrative Agent and each
Bank and their Affiliates, directors, officers, agents, attorneys, advisors and
employees (collectively the "Indemnitees") from and against: (a) any and all
-----------
claims, demands, actions or causes of action if the claim, demand, action or
cause of action arises out of or relates to the Commitment, the use or
contemplated use of proceeds of any Advance, any drawing under any Letter of
Credit, any transaction contemplated by this Agreement, or any relationship or
relationship alleged to exist by any Borrower, its Affiliates or any other third
party of any Indemnitee to any Borrower related to this Agreement; (b) any
administrative or investigative proceeding by any Governmental Agency arising
out of or related to a claim, demand, action or cause of action described in
clause (a) above; and (c) any and all liabilities, losses, costs or expenses
(including attorneys' fees and disbursements and other professional services)
---------
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action or cause of action; provided that no Indemnitee
--------
shall be entitled to indemnification for any loss caused by its own gross
negligence or willful misconduct. If any claim, demand, action or cause of
action is asserted against any Indemnitee, such Indemnitee shall promptly notify
the Company, but the failure to so promptly notify the Company shall not affect
the Company's obligations under this Section unless such failure materially
prejudices the Company's right to participate in the contest of such claim,
demand, action or cause of action, as hereinafter provided. If requested by the
Company in writing, such Indemnitee shall in good faith contest the validity,
applicability and amount of such claim, demand, action or cause of action and
shall permit the Company to participate in such contest. Any Indemnitee that
proposes to settle or compromise any claim or proceeding for which the Company
may be liable for payment of indemnity hereunder shall give the Company written
notice of the terms of such proposed settlement or compromise reasonably in
advance of settling or compromising such claim or proceeding and shall obtain
the Company's prior consent. In connection with any claim, demand, action or
cause of action covered by this Section against more than one Indemnitee, all
such Indemnitees shall be represented by the same legal counsel selected by the
Indemnitees and reasonably acceptable to the Company; provided that, if such
--------
legal counsel determines in good faith that representing all such Indemnitees
would or could result in a conflict of interest under Laws or ethical principles
applicable to such legal counsel or that a defense or counterclaim is available
to an Indemnitee that is not available to all such Indemnitees, then to the
extent reasonably necessary to avoid such a conflict of interest or to permit
unqualified assertion of such a defense or counterclaim,
79
each Indemnitee shall be entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to the Company, with all
such legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; provided further that the amount of the
--------
legal fees to be reimbursed by the Company shall be limited to an amount
reasonably determined following consultation among the Company, the
Administrative Agent, the Banks and their respective legal counsel, to be equal
to the amount that would have been expended if the Indemnitees have been
represented by one counsel. Any obligation or liability of the Company to any
Indemnitee under this Section shall survive the expiration or termination of
this Agreement and the repayment of all Advances and the payment and performance
of all other Obligations owed to the Banks.
13.13 No Third Parties Benefited. This Agreement is made for the purpose
--------------------------
of defining and setting forth certain obligations, rights and duties of the
Borrowers, the Administrative Agent, the Issuing Bank and the Banks in
connection with the Loans, Advances and Letters of Credit, and is made for the
sole benefit of the Borrowers, the Administrative Agent, the Issuing Bank and
the Banks, and the Administrative Agent's, the Issuing Bank's and the Banks'
successors and assigns. Except as provided in Sections 13.8 and 13.11, no other
------ ------------- -----
Person shall have any rights of any nature hereunder or by reason hereof.
13.14 Confidentiality. Each of the Administrative Agent, the Issuing Bank
---------------
and each Bank agrees to hold any confidential information that it may receive
from any Borrower pursuant to this Agreement in confidence: except for
------
disclosure: (a) to other Banks; (b) to legal counsel, accountants and other
professional advisors to any Borrower or the Administrative Agent, the Issuing
Bank or any Bank; (c) to regulatory officials having jurisdiction over the
Administrative Agent, the Issuing Bank or a Bank; (d) as required by Law or
legal process or in connection with any legal proceeding to which the
Administrative Agent, the Issuing Bank or a Bank and that Borrower are adverse
parties; (e) to Affiliates of the Administrative Agent by the Administrative
Agent and (f) to Affiliates of a Bank or to another financial institution, in
each case, in connection with a disposition or proposed disposition to that
financial institution of all or part of that Bank's interests hereunder or a
participation interest in its Note, provided that such disclosure is made
--------
subject to an appropriate confidentiality agreement on terms substantially
similar to this Section. For purposes of the foregoing, "confidential
information" shall mean any information respecting the Company or its
Subsidiaries reasonably considered by the Company to be confidential, other than
----------
(i) information previously filed with any Governmental Agency and available to
the public, (ii) information previously published in any public medium from a
source other than, directly or indirectly, that Bank, and (iii) information
previously disclosed by a Borrower to
80
any Person not associated with that Borrower without a written confidentiality
agreement substantially similar to this Section. Nothing in this Section shall
be construed to create or give rise to any fiduciary duty on the part of the
Administrative Agent, the Issuing Bank or the Banks to the Borrowers.
13.15 Further Assurances. The Company and its Subsidiaries shall, at
------------------
their expense and without expense to the Banks, the Issuing Bank or the
Administrative Agent, do, execute and deliver such further acts and documents as
any Bank, the Issuing Bank or the Administrative Agent from time to time
reasonably requires for the assuring and confirming unto the Banks, the Issuing
Bank or the Administrative Agent of the rights hereby created or intended now or
hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
13.16 Removal of Bank. As of the date any Bank is removed at the request
---------------
of the Company, whether pursuant to Section 3.7, Section 3.8 or otherwise, (i)
all obligations of such Bank under this Agreement shall be released and
terminated and (ii) such Bank's Pro Rata Share of the Commitment shall be
terminated, including such Bank's participation in any Letter of Credit. The
removal of any such Bank shall be subject to the satisfaction of the following
conditions:
(a) The Company shall compensate any such Bank so replaced for (i) any
breakage costs incurred due to the removal of such Bank, as determined by
such Bank in good faith, and (ii) all accrued interest and fees owing to
such Bank pursuant to this Agreement as of the date such Bank is so
replaced; and
(b) Such Bank shall receive payment of principal of all Advances made
to any Borrower hereunder.
13.17 Integration. This Agreement, together with the other Loan
-----------
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof. In the event of any conflict between the provisions
of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
--------
rights or remedies in favor of the Administrative Agent, the Issuing Bank or the
Banks in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
13.18 Severability of Provisions. Any provision in any Loan Document that
--------------------------
is held to be inoperative, unenforceable or invalid as to any party or in any
jurisdiction shall, as to
81
that party or jurisdiction, be inoperative, unenforceable or invalid without
affecting the remaining provisions or the operation, enforceability or validity
of that provision as to any other party or in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
13.19 Independent Covenants. Each covenant in Articles 5, 6 and 7 is
--------------------- -------- - - -
independent of the other covenants in those Articles; the breach of any such
covenant shall not be excused by the fact that the circumstances underlying such
breach would be permitted by another such covenant.
13.20 Headings. Article and Section headings in this Agreement and the
--------
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
13.21 Time of the Essence. Time is of the essence of the Loan Documents.
-------------------
13.22 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
--------------
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (INCLUDING
SECTION 1646.5 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA) WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
13.23 Consent to Jurisdiction and Service of Process. ALL JUDICIAL
----------------------------------------------
PROCEEDINGS BROUGHT AGAINST THE BORROWERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
CALIFORNIA, COUNTY AND CITY OF LOS ANGELES, BY EXECUTING AND DELIVERING THIS
AGREEMENT, EACH BORROWER, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO THE COMPANY AND ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 13.6;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH BORROWER IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT THE ADMINISTRATIVE AGENT, THE BANKS, AND THE ISSUING
BANK RETAIN THE RIGHT TO SERVE
82
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST SUCH BORROWER IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 13.24 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 410.40.
13.24 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
--------------------
AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED.
The scope of this waiver is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the subject matter of
this transaction, including contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. Each party hereto acknowledges
that this waiver is a material inducement to enter into a business relationship,
that each has already relied on this waiver in entering into this Agreement, and
that each will continue to rely on this waiver in their related future dealings.
Each party hereto further warrants and represents that it has reviewed this
waiver with its legal counsel and that it knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION
13.25 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.
83
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
THE COMPANY:
AMGEN INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Finance,
Chief Financial Officer and
Chief Accounting Officer
Address:
Amgen Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer
cc: Secretary
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
BORROWING SUBSIDIARIES:
AMGEN PUERTO RICO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer and
Treasurer
Address:
Amgen Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer
cc: Secretary
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
S-2
THE ADMINISTRATIVE AGENT:
CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Attorney-In-Fact
------------------------
By:
---------------------------
Title:
------------------------
S-3
THE ISSUING BANK:
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
------------------------
By:
---------------------------
Title:
------------------------
S-4
THE BANKS:
CITICORP USA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Attorney-In-Fact
------------------------
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇/Banker
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
S-5
BANCA COMMERCIALE
ITALIANA, LOS ANGELES
FOREIGN BRANCH
By: /s/ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇
---------------------------------------
▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P. & MANAGER V.P.
------------------------------------
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
S-6
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Vice President
-----------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Vice President/Director
-----------------------------
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
S-7
SANWA BANK, LIMITED
LOS ANGELES BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Title: Vice President
--------------------------
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
S-8
BANK OF AMERICA NT & SA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
-----------------------------
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
S-9
EXHIBIT A
EXHIBIT A
[FORM OF AGREEMENT TO PARTICIPATE]
AGREEMENT TO PARTICIPATE
------------------------
______________, ____
CITICORP USA, INC.
as Administrative Agent (the "Administrative Agent") for
the Banks referred to in the Credit Agreement dated as of
May __, 1998, among Amgen Inc., the Borrowing Subsidiaries
therein named, the Banks therein named, Citibank, N.A. as
Issuing Bank, and Citicorp USA, Inc., as Administrative
Agent (the "Credit Agreement")
Ladies and Gentlemen:
The terms not defined herein which are defined in the Credit Agreement
shall have for the purposes hereof the meaning provided therein.
1. [name of Eligible Subsidiary], a [jurisdiction of incorporation]
corporation ("Participant"), hereby elects to become a Borrower for all purposes
of the Credit Agreement, effective on the date hereof.
2. Participant hereby agrees to perform all obligations of a Borrower
under, and to be bound in all respects by the terms of, the Credit Agreement and
agrees that the Banks and the Administrative Agent shall be entitled to the
benefits of, and shall have all of the rights and remedies against Participant
described in, the Credit Agreement, as if Participant were named as a Borrower
therein and were a signatory party thereto.
3. Participant represents and warrants that:
a. Participant is a corporation duly formed, validly existing and in
good standing under the laws of its jurisdiction of incorporation, is an
Eligible Subsidiary and has all requisite corporate power and authority
to enter into and perform its obligations hereunder and under the Loan
Documents.
A-1
b. The execution and delivery by Participant of this Agreement to
Participate and the Notes, and the performance by it of this Agreement to
Participate and the Loan Documents, have been duly authorized by all
necessary corporate action, and do not (i) require any consent or
approval not heretofore obtained of any partner, director, stockholder,
security holder or creditor of Participant; (ii) result in or require the
creation or imposition of any Lien upon or with respect to any Property
now owned or leased or hereafter acquired by Participant; (iii) violate,
to the best knowledge of Participant, any Requirement of Law applicable
to Participant; or (iv) result (or, with the giving of notice or passage
of time or both, would result) in a breach of or default under, or cause
or permit the acceleration of any obligation owed under any Contractual
Obligation to which Participant is a party or by which Participant or any
of its Property is bound or affected; except, in each case, where
violation of, or default under, any such Requirement of Law or
Contractual Obligation would not constitute a Material Adverse Effect.
c. Subject to the representations of the Banks contained in Section
-------
13.9 of the Credit Agreement, no authorization, consent, approval,
----
order, license or permit from, or filing, registration or qualification
with, any Governmental Agency is required to authorize or permit under
applicable Laws the execution, delivery and performance by Participant
of this Agreement to Participate or for the performance by Participant
of the Loan Documents.
4. This Agreement to Participate shall be governed by and construed
in accordance with the Laws of the state of California applicable to contracts
made and performed in such state. Participant agrees that each of the
provisions of the Credit Agreement shall apply to it and to this Agreement to
Participate as if it were an original Borrowing Subsidiary signatory thereto and
the Agreement to Participate were referenced therein.
5. This Agreement to Participate may be signed in any number of
counterparts, each of which shall constitute an
A-2
original, with the same effect as if the signatures hereto and thereto were upon
the same instrument.
[NAME OF ELIGIBLE SUBSIDIARY]
By:________________________
Title:_____________________
CITICORP USA, INC.,
as Administrative Agent
By:________________________
Title:_____________________
This Agreement is hereby acknowledged and consented to on and as of the
date set forth above.
AMGEN INC.
By:________________________
Title:_____________________
A-3
EXHIBIT B
[FORM OF COMMITTED ADVANCE NOTE]
COMMITTED ADVANCE NOTE
----------------------
$_____________ May__, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
_____________________________________ (the "Bank"), the principal amount of
______________ Dollars ($_________), or such lesser aggregate amount of
Committed Advances as may be made pursuant to the Bank's Pro Rata Share of the
Commitment under the Credit Agreement hereinafter described, payable as
hereinafter set forth. The undersigned promises to pay interest on the
principal amount of each Committed Advance made hereunder and remaining unpaid
from time to time from the date of each such Committed Advance until the date of
payment in full, payable as hereinafter set forth.
Reference is made to the Credit Agreement dated as of May __, 1998 (as
amended from time to time, the "Credit Agreement"), among Amgen Inc., the
Borrowing Subsidiaries therein named, the Banks therein named, Citibank, N.A.,
as Issuing Bank, and Citicorp USA, Inc., as Administrative Agent. Terms defined
in the Credit Agreement and not otherwise defined herein are used herein with
the meanings defined for those terms in the Credit Agreement. This is one of
the Committed Advance Notes ("Note") referred to in the Credit Agreement, and
any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Credit Agreement as originally executed or as it
may from time to time be supplemented, modified, amended, renewed, extended or
supplanted. The Credit Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Note shall be payable as
provided in the Credit Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Committed Advance hereunder from the date thereof until payment
in full and shall accrue and be payable at the rates and on the dates set forth
in the Credit Agreement both before and after default, before and after maturity
and judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law with interest on overdue interest to bear interest at the rate
set forth in
B-1
Section 3.9 of the Credit Agreement, to the extent permitted by applicable Laws.
The undersigned shall have the right to prepay any amounts outstanding
under this Note in accordance with Section 3.1(f) of the Credit Agreement.
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office, for the account of
the Bank, in lawful money of the United States of America and in immediately
available funds not later than 2:00 p.m., New York City time, on the day of
payment (which must be a Banking Day). All payments received after 2:00 p.m.,
New York City time, on any particular Banking Day shall be deemed received on
the next succeeding Banking Day.
The Bank shall use its best efforts to keep a record of Committed
Advances made by it and payments received by it with respect to this Note and,
subject to Section 10.6(g) of the Credit Agreement, such record shall be
presumptive evidence of the principal amount owing under this Note.
As set forth in Section 13.3 of the Credit Agreement, the undersigned
hereby promises to pay the reasonable out-of-pocket costs and expenses of any
holder hereof incurred in collecting the undersigned's obligations hereunder or
in enforcing any holder's rights hereunder, including attorneys' fees and
disbursements.
The undersigned hereby waives presentation, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice of
formality, to the fullest extent permitted by applicable Laws.
THIS NOTE SHALL BE DEEMED DELIVERED TO AND ACCEPTED BY THE
ADMINISTRATIVE AGENT ON BEHALF OF THE BANK IN THE STATE OF CALIFORNIA, AND SHALL
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE.
[BORROWER]
By_____________________________
Its_______________________
B-2
COMMITTED ADVANCES AND PAYMENTS OF PRINCIPAL
UNDER COMMITMENT
Amount Amount
Type of of Unpaid
of Committed Principal Principal Notation
Date Advance Advance Paid Balance Made By
B-3
EXHIBIT C
[FORM OF COMPETITIVE ADVANCE NOTE]
COMPETITIVE ADVANCE NOTE
------------------------
$150,000,000 May __, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
____________________________________ (the "Bank"), the principal amount of One
Hundred and Fifty Million Dollars ($150,000,000), or such lesser aggregate
amount of Competitive Advances as may be made pursuant to Section 2.4 of the
Credit Agreement hereinafter described, payable as hereinafter set forth. The
undersigned promises to pay interest on the principal amount of each Competitive
Advance made hereunder and remaining unpaid from time to time from the date of
each such Competitive Advance until the date of payment in full, payable as
hereinafter set forth.
Reference is made to the Credit Agreement dated as of May __, 1998 (as
amended from time to time, the "Credit Agreement"), among Amgen Inc., the
Borrowing Subsidiaries therein named, the Banks therein named, Citibank, N.A.,
as Issuing Bank, and Citicorp USA, Inc. as Administrative Agent. Terms defined
in the Credit Agreement and not otherwise defined herein are used herein with
the meanings defined for those terms in the Credit Agreement. This is one of the
Competitive Advance Notes ("Note") referred to in the Credit Agreement, and any
holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Credit Agreement as originally executed or as it
may from time to time be supplemented, modified, amended, renewed, extended or
supplanted. The Credit Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Note shall be payable in
accordance with each Competitive Bid of the Bank as provided in the Credit
Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of each Competitive Advance hereunder from the date thereof until payment
in full and shall accrue and be payable in accordance with each Competitive Bid
of the Bank as provided in the Credit Agreement both before and after default,
before and after maturity and judgment, and before and after the commencement of
any proceeding under any Debtor Relief Law with interest on overdue interest to
bear interest at the rate set
C-1
forth in Section 3.9 of the Credit Agreement, to the extent permitted by
applicable Laws.
The undersigned may not prepay the amounts outstanding under this Note
without the consent of the holder hereof, in accordance with Section 3.1(g) of
the Credit Agreement.
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office, for the account of
the Bank, in lawful money of the United States of America and in immediately
available funds not later than 2:00 p.m., New York City time, on the day of
payment (which must be a Banking Day). All payments received after 2:00 p.m.,
New York City time, on any particular Banking Day shall be deemed received on
the next succeeding Banking Day.
The Bank shall use its best efforts to keep a record of Competitive
Advances made by it and payments of principal with respect to this Note and,
subject to Section 10.6(g) of the Credit Agreement, such record shall be
presumptive evidence of the principal amount owing under this Note.
As set forth in Section 13.3 of the Credit Agreement, the undersigned
hereby promises to pay the reasonable out-of-pocket costs and expenses of any
holder hereof incurred in collecting the undersigned's obligations hereunder or
in enforcing any holder's rights hereunder, including reasonable attorneys' fees
and disbursements.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THIS NOTE SHALL BE DEEMED DELIVERED TO AND ACCEPTED BY THE
ADMINISTRATIVE AGENT ON BEHALF OF THE BANK IN THE STATE OF CALIFORNIA, AND SHALL
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE.
[Borrower]
By_____________________________
Its_______________________
C-2
COMPETITIVE ADVANCES AND PAYMENTS OF PRINCIPAL
Stated Amount Amount
Fixed of of Unpaid
Interest Maturity Competitive Principal Principal Principal Notation
Date Rate Date Advance Paid Balance Balance Made By
C-3
EXHIBIT D
[FORM OF COMPETITIVE BID]
COMPETITIVE BID
---------------
(Date)
[BORROWER]
___________________________
___________________________
___________________________
Attention: ___________________
Ladies and Gentlemen:
The undersigned _________________________________ ("Bank"), refers to
the Credit Agreement dated as of May __, 1998 (the "Agreement"), among Amgen
Inc., the Borrowing Subsidiaries therein named, the Banks therein named,
Citibank, N.A., as Issuing Bank, and Citicorp USA, Inc., as Administrative
Agent. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Agreement. The undersigned
hereby makes a Competitive Bid pursuant to Section 2.4(f) of the Agreement, in
response to the Competitive Bid Request made by ____________________ (the
"Borrower") on ____________________, 19__, for a Competitive Advance in the
amount of______________ to bear interest at a fixed interest rate of _____% per
annum to be made on 19__, with a maturity date of ______________, 19__.
The undersigned hereby confirms that it is prepared to extend credit
to the Borrower in accordance with Section 2.4(i) of the Agreement upon
acceptance by the Borrower of this bid in accordance with Section 2.4(h) of the
Agreement.
Very truly yours,
[NAME OF BANK]
By_________________________________
Its___________________________
By_________________________________
Its___________________________
D-1
EXHIBIT E
[FORM OF COMPETITIVE BID REQUEST]
COMPETITIVE BID REQUEST
-----------------------
To: Each of the Banks party to the Credit Agreement referenced
below
Citicorp USA, Inc.
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned, _________________________ (the "Borrower"), refers to
the Credit Agreement dated as of May __, 1998 (the "Credit Agreement"), among
Amgen Inc., the Borrowing Subsidiaries therein named, the Banks therein named,
Citibank N.A., as Issuing Bank, and Citicorp USA, Inc., as Administrative Agent.
The Borrower hereby requests pursuant to Section 2.4(b) of the Credit Agreement
that the Banks submit Competitive Bids for a Competitive Advance on the
following terms:
(a) Date of Competitive Advance: ______________, 19__
(b) Amount of Competitive Advance: $___________________
(c) Maturity Date: ____________________
In connection with the Competitive Advance requested herein, upon
acceptance of any Competitive Bid offered by the Bank in response to this
Competitive Bid Request pursuant to Section 2.4(b) of the Credit Agreement, the
Borrower shall be deemed to have represented and warranted that the conditions
to lending in Section 8.2 of the Credit Agreement have been satisfied.
Very truly yours,
[BORROWER]
By_______________________________
Its_________________________
E-1
EXHIBIT F
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
----------------------
1. This Compliance Certificate ("Compliance Certificate") is executed
and delivered by AMGEN INC., a Delaware corporation (the "Company"), to CITICORP
USA, INC. (the "Administrative Agent") pursuant to Section 7.2 of the Credit
-----------
Agreement (the "Credit Agreement") dated as of May __, 1998 among Amgen Inc.,
the Borrowing Subsidiaries therein named, the Banks therein named, Citibank,
N.A., as Issuing Bank, and Citicorp USA, Inc., as Administrative Agent. Any
terms used herein and not defined herein shall have the meanings defined in the
Credit Agreement. This Compliance Certificate covers the Company's:
Fiscal Quarter ended ________________, ____
Fiscal Year ended December 31, _____
2. The following paragraphs set forth calculations showing whether
the Company is in compliance with its obligations pursuant to Sections 6.5, 6.7
-----------------
and 6.8 of the Credit Agreement, as of the end of the fiscal period set forth in
---
paragraph 1 hereof. The calculations also determine the Cross-Default Amount
referred to in Section 9.1(f) of the Credit Agreement. Each calculation set
--------------
forth below identified as "Actual" is derived from the books and records of the
Company in accordance with the relevant definitions of financial terms set forth
in Section 1.1 of the Credit Agreement, and correctly reflects whether the
-----------
Company is in compliance with the obligations contained in the applicable
Sections of the Credit Agreement parenthetically noted, which obligations are
set forth below identified under the column marked "Required/Permitted".
F-1
Actual Required/Permitted
------ ------------------
I. Liens (Section 6.5(e)):
----------------------
(a) Indebtedness of the Company and its Subsidiaries
incurred after the date of the Credit Agreement secured by
Liens $___________
(b) Total assets of the Company $___________
(a) = $___________ Not greater than 35%
--- In compliance ___ (Y or N)
(b)
II. Interest Charge Coverage Ratio
------------------------------
(Section 6.7):
-----------------
(a) Adjusted Net Income for the four immediately preceding
Fiscal Quarters
(i) Net Income $___________
(ii) Extraordinary Losses $___________
(iii) Extraordinary Gains $___________
(i) + (ii) - (iii) = $___________
(b) Interest Charges during the four immediately
preceding Fiscal Quarters
(i) Interest, fees, charges and related expenses
paid or payable (without duplication) to lenders in
connection with money borrowed or the deferred
purchase price of assets that is treated as interest
in accordance with Generally Accepted Accounting
Principles excluding interest paid or payable
(without duplication) for that fiscal period on any
intercompany loans $___________
(ii) Portion of rent paid or payable (without
duplication) under Capital Leases that should be
treated as interest in accordance with Generally
Accepted Accounting Principles $___________
(i) + (ii) = $___________
(c) Depreciation expense during the four immediately preceding
Fiscal Quarters $___________
(d) Amortization expense during the four immediately preceding
Fiscal Quarters $___________
F-2
Actual Required/Permitted
------ ------------------
(e) Provisions for taxes based on income during the four
immediately preceding Fiscal Quarters $___________
(a) + (b) + (c) + (d) + (e) = ____:1.00 Not less than 3.00:1.00
--------------------------- In compliance ___ (Y or N)
(b)
III. Tangible Net Worth (Section 6.8):
--------------------------------
Items (a), (b) and (c) are to be aggregated for all Fiscal
Quarters in the Calculation Period, which commences
January 1, 1998 and ends on the last day of the Fiscal
Quarter for which the calculation is being made.
(a) 25% of net proceeds of issuance of equity securities
during all Fiscal Quarters in the Calculation Period $___________
(b) 25% of Net Income for all Fiscal Quarters in the
Calculation Period $___________
(c) 25% of funds used by the Company to repurchase the
Company's equity securities during all Fiscal Quarters in the
Calculation Period $___________
(d) Tangible Net Worth:
(i) Shareholders' Equity of the
Company and its Consolidated
Subsidiaries $___________
(ii) Book value of Intangible
Assets of the Company and its
Consolidated Subsidiaries $___________
(i) - (ii) = $___________ Not less than $1,500,000,000 +
(a) + (b) - (c) =
$____________.
In compliance ___ (Y or N)
IV. Cross-Default Amount (Section 9.1(f)):
-------------------------------------
(a) Tangible Net Worth (from Paragraph III(d)) x 5% = $___________
(b) $50,000,000
Cross-Default Amount =
the lesser of (a) or (b) = $___________
F-3
3. To the best knowledge of the undersigned, during the fiscal
period covered by this Compliance Certificate, no Default or Event of Default
has occurred and is continuing, with the exceptions set forth below in response
to which the Company has taken or proposes to take the following actions (if
none, so state):
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
4. This Compliance Certificate is executed on ______________, ____,
by a Senior Officer of the Company. The undersigned hereby certifies that each
and every matter contained herein is derived from the Company's books and
records and is, to the best knowledge of the undersigned, true and correct.
AMGEN INC.
By______________________________
Its______________________
F-4
EXHIBIT G-1
[see attached]
G-1-1
May 28, 1998
(▇▇▇) ▇▇▇-▇▇▇▇ 155,076-025
Citicorp USA, Inc.
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Banks and Issuing Bank Named On the List
Attached Hereto as Exhibit A
Re: Credit Agreement, dated as of May 28, 1998, among Amgen Inc., the
Borrowing Subsidiaries therein named, the Banks therein named,
Citibank N.A., as Issuing Bank, and Citicorp USA, Inc., as
Administrative Agent
-----------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Citicorp USA, Inc., as Administrative
Agent (in such capacity, the "Administrative Agent"), in connection with the
preparation and delivery of a Credit Agreement dated as of May 28, 1998 (the
"Credit Agreement") among Amgen Inc., a Delaware corporation (the "Company"),
the Borrowing Subsidiaries therein named, the Banks named therein, Citibank,
N.A., as Issuing Bank and the Administrative Agent and in connection with the
preparation and delivery of certain related documents. Unless otherwise
indicated, capitalized terms used herein but not otherwise defined herein have
the respective meanings set forth in the Credit Agreement.
We have participated in various conferences with representatives of
the Company and the Administrative Agent during which the Credit Agreement and
related matters have been discussed. We have reviewed the forms of the Credit
Agreement and the exhibits thereto, including the form of the promissory notes
annexed thereto (the "Notes") and the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
("Opinion") and the officers' certificates and other documents delivered on the
date hereof. We have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals or copies and the due
authority of all persons executing the same, and we have relied as to factual
matters on the documents that we have reviewed.
On the basis of the foregoing, we are of the opinion that the Credit
Agreement constitutes the legally valid and binding obligation of the Borrowers,
and each Note constitutes the legally valid and binding obligation of the
Borrower that has executed such Note, enforceable against the applicable
Borrower in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in equity or at law.
In giving the foregoing opinion, we have assumed, without independent
investigation, that the Credit Agreement and the Notes have been duly authorized
by all necessary corporate action on the part of each of the Borrowers and have
been duly executed and delivered by each of the Borrowers party thereto and that
each of the Borrowers is a corporation duly organized, validly existing and in
good standing under the jurisdiction of its incorporation. We understand that
you are relying on the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., general counsel of the
Company, with respect to such matters.
Our opinion as to the enforceability of the Agreement is subject to:
(i) public policy considerations, statutes or court decisions that may
limit the rights of a party to obtain indemnification against its own negligence
of willful misconduct; and
(ii) the unenforceability under certain circumstances of broadly or
vaguely stated waivers or waivers of rights granted by law where the waivers are
against public policy or prohibited by law.
In addition, we
(i) express no opinion as to the effect of non-compliance by you with
any state or federal laws or regulations applicable to the transactions
contemplated by the Credit Agreement because of the nature of your business;
(ii) advise you that Section 13.24 of the Credit Agreement which
provides for non-exclusive jurisdiction of the courts of the State of California
and federal courts sitting in that State, may not be binding on the federal
courts sitting in California;
(iii) express no opinion with respect to your ability to collect
attorneys' fees and costs in an action involving the Credit Agreement if you are
not the prevailing party in that action (we call your attention to the effect of
Section 1717 of the California Civil Code, which provides that where a contract
permits one party thereto to recover attorneys' fees, the prevailing party in
any action to enforce any provision of the contract shall be entitled to recover
its reasonable attorneys' fees).
(iv) express no opinion as to any provision of the Credit Agreement
requiring written amendments or waivers of the Credit Agreement insofar as it
suggests that oral or other modifications, amendments or waivers could not be
effectively agreed upon by the parties or that the doctrine of promissory
estoppel might not apply; and
(v) advise you of California statutory provisions and case law to the
effect that, in certain circumstances, a guarantor may be exonerated if the
creditor, without the consent of the guarantor, materially alters the original
obligation of the principal, elects remedies for default that impair the
subrogation or reimbursement rights of the guarantor against the principal, or
otherwise takes action that materially prejudices the guarantor. There is also
authority (including California Civil Code Section 2856, which has not yet been
the subject to judicial interpretation) to the effect that a guarantor may
effectively waive statutory suretyship defenses if express waivers of such
defenses are set forth in the guaranty. We express no opinion as to the
effectiveness, under California law, of the waivers set forth in Article 11 of
the Credit Agreement, although we believe that a California court should hold
that the explicit language contained in Article 11 of the Credit Agreement
waiving such defenses is enforceable. We express no opinion as to the effect on
Article 11 of the Credit Agreement of: (i) any modification to or amendment of
a Borrower's obligations that materially increases those obligations, or (ii)
any other action by the Administrative Agent or any Bank that materially
prejudices the Company acting in its capacity as guarantor, if in any such
instance, such modification, amendment or action occurs without notice to and
the consent of the Company acting in its capacity as guarantor.
The law covered by this opinion is limited to present federal law and
the present law of the State of California. We express no opinion as to the
laws of the any other jurisdiction and no opinion regarding the statutes,
administrative decisions, rules, regulation or requirements or any country,
municipality, subdivision or local authority or any jurisdiction.
This opinion is furnished by us as special counsel for the
Administrative Agent and may be relied upon by you only in connection with the
Credit Agreement. It may not be used or relied upon by you for any other
purpose or by any other person, nor may copies be delivered to any other person,
without in each instance our prior written consent other than to attorneys for
and auditors of the Banks, the Issuing Bank and the Administrative Agent, to
governmental officials with regulatory authority with respect to the business of
the Banks, the Issuing Bank and the Administrative Agent and to bona fide
prospective purchasers of assignments of or participations in the debt arising
under the Loan Documents.
Respectfully submitted,
EXHIBIT H
[REQUEST FOR LETTER OF CREDIT]
REQUEST FOR LETTER OF CREDIT
----------------------------
1. This Request for Letter of Credit is executed and delivered by
___________________ (the "Borrower") to Citibank, N.A. (the "Issuing Bank")
pursuant to that certain Credit Agreement (the "Credit Agreement") dated as of
May __, 1998, entered into among Amgen Inc., the Borrowing Subsidiaries therein
named, the Banks therein named, Citibank, N.A., as Issuing Bank and Citicorp
USA, Inc., as Administrative Agent. Terms defined in the Credit Agreement and
not otherwise defined herein are used herein as defined in the Credit Agreement.
2. Borrower hereby requests that the Issuing Bank issue a Letter of
Credit as follows:
(a) Amount of Letter of Credit: $_______________.
(b) Date of Issuance: _________________, ____.
(c) Beneficiary under Letter of Credit:
Name:
_________________________________
Address: _____________________________
_____________________________
_____________________________
(d) Expiry Date: ______________________, _____
(e) Purpose of Letter of Credit:
____________________________
____________________________
____________________________
(f) Additional Information/Terms:
____________________________
____________________________
____________________________
3. The requested Letter of Credit is (check one box only):
[ ] a new Letter of Credit in addition to Letters of Credit
already outstanding.
H-1
[ ] a supplement, modification, amendment, renewal, or extension
to or of the following outstanding Letter(s) of Credit:
(Identify)
----------
4. In connection with the issuance of the Letter of
Credit requested herein, Borrower hereby represents, warrants, and certifies to
the Banks that:
(a) As of the date of issuance of the Letter of Credit requested
herein, each of the representations and warranties made by Borrower in
Article 4 of the Credit Agreement, other than Sections 4.4 and 4.8 and
--------------------
the first sentence of Section 4.6, is true and correct in all material
-----------
respects as though such representations and warranties were made on
and as of the date of the issuance of the requested Letter of Credit
(except to the extent such representations and warranties specifically
relate to an earlier date in which case they are true and correct in
all material respects as of such earlier date);
(b) Except for (a) any matter fully covered (subject to
applicable deductibles and retentions) by insurance for which the
insurance carrier has assumed full responsibility and (b) matters
described in clauses (b) or (c) of Section 4.8 of the Credit Agreement
-----------
on the Closing Date, there is no action, suit, proceeding or
investigation pending as to which the Company or any of its
Subsidiaries have been served or have received notice or, to the best
knowledge of the Company, threatened against or affecting the Company
or its Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect; and
(c) Following the issuance of the Letter of Credit requested
herein (i) the aggregate face amount of all outstanding Letters of
Credit will not exceed $25,000,000 (ii) the sum of all Committed
Advances then outstanding plus the sum of all Competitive Advances
----
then outstanding plus the face amount of all Letters of Credit then
----
outstanding plus the sum of all unreimbursed drawings under Letters of
----
Credit shall not exceed the Commitment, and (iii) the Total
Outstandings will not exceed the Commitment.
5. Attached hereto is an Application for the Letter
of Credit on the form provided to Borrower by the Issuing Bank.
H-2
6. This Request for Letter of Credit is executed on ____________,
____, by a Responsible Official of Borrower, on behalf of Borrower. The
undersigned, in such capacity, hereby certifies each and every matter contained
herein to be true and correct.
[BORROWER]
By___________________________
Its_____________________
H-3
EXHIBIT I
[REQUEST FOR LOAN]
REQUEST FOR LOAN
----------------
1. This Request for Loan is by __________________ (the "Borrower") to
Citicorp USA, Inc. (the "Administrative Agent") pursuant to that certain Credit
Agreement (the "Credit Agreement) dated as of May __, 1998 between Amgen Inc.,
the Borrowing Subsidiaries therein named, the Banks therein named, Citibank,
N.A., as Issuing Bank, and Citicorp USA, Inc., as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the meanings
defined in the Credit Agreement.
2. Borrower hereby requests that Bank make a Loan for the account of
Borrower pursuant to the Credit Agreement as follows:
(a) DATE OF LOAN: _______
(b) TYPE OF LOAN (Check one box only):
[ ] BASE RATE LOAN
[ ] EURODOLLAR LOAN WITH A
___ --MONTH EURODOLLAR PERIOD
(c) AMOUNT OF REQUESTED LOAN: $_______
(d) INTEREST PERIOD OF LOAN ENDS: ________
3. In connection with each request pursuant to Section 2 above,
Borrower certifies that:
(a) The aggregate outstanding balance of Competitive Advances is
$___________________.
(b) As of the date of the requested Loan, (i) each
representation and warranty made by Borrower in Article 4 of the
Credit Agreement, other than Sections 4.4 and 4.8 and the first
--------------------
sentence of Section 4.6, will be true and correct, both immediately
-----------
before and after giving effect to such Loan, as though such
representations and warranties were made on and as of that date
(except to the extent such representations
I-1
and warranties specifically relate to an earlier date in which case
they shall be true and correct in all material respects as of such
earlier date), (ii) except for (a) any matter fully covered (subject
to applicable deductibles and retentions) by insurance for which the
insurance carrier has assumed full responsibility and (b) matters
described in clauses (b) or (c) of Section 4.8 of the Credit Agreement
-----------
on the Closing Date, there is no action, suit, proceeding or
investigation pending as to which the Company or any of its
Subsidiaries have been served or have received notice or, to the best
knowledge of the Company, threatened against or affecting Company or
any of its Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect, and
(iii) after giving effect to the requested Loan, the Total
Outstandings will not exceed the Commitment.
4. This Request for Loan is executed on _________________, ____ by a
Responsible Official of Borrower on behalf of Borrower. The undersigned, in
such capacity, hereby certifies each and every matter contained herein to be
true and correct except as previously disclosed by Borrower in writing to the
------
Banks and waived by the Majority Banks or all Banks, as applicable.
[BORROWER]
By ____________________________
Its ______________________
I-2
EXHIBIT J
[FORM OF ASSIGNMENT AGREEMENT]
ASSIGNMENT AGREEMENT
--------------------
Reference is made to the Credit Agreement dated as of May __, 1998 (as
it may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among Amgen Inc. (the "Company"), the Borrowing Subsidiaries
therein named, the Banks therein named, Citibank, N.A. as Issuing Bank, and
Citicorp USA, Inc., as Administrative Agent. Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement.
________________ ("Assignor") and ______________ ("Assignee") agree as
follows:
1. Assignor hereby sells and assigns to Assignee, and Assignee
hereby purchases and assumes from Assignor, a __% interest in and to all
Assignor's rights and obligations under the Credit Agreement as of the
Effective Date (as defined in Paragraph 4 below) (including, without
limitation, such percentage interest in the Pro Rata Share of the
Commitment of Assignor on the Effective Date and such percentage interest
in the Loans owing to the Assignor outstanding on the Effective Date,
together with such percentage interest in all unpaid interest and fees
accrued to the Effective Date).
2. Assignor (i) represents that as of the date hereof, its Pro
Rata Share of the Commitment (without giving effect to assignments thereof
which have not yet become effective) is $__________, and the outstanding
balance of its Loans (not reduced by any assignments thereof which have not
yet become effective) is $__________; (ii) represents that this Assignment
Agreement is entered into in accordance with the provisions of subsection
13.9 of the Credit Agreement; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; and (iv) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition
J-1
of the Company or its Subsidiaries or the performance or observance by the
Company or any of its Subsidiaries of any of its or their obligations under
the Credit Agreement or any other instrument or document furnished pursuant
thereto.
3. Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment Agreement; (ii) confirms that it
has received a copy of the financial statements delivered pursuant to
subsections 4.5 and 7.1 of the Credit Agreement and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement; (iii) agrees
that it will, independently and without reliance upon the Administrative
Agent, the Co-Arrangers, Assignor or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iv) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with
their terms all the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Bank; and (vi) agrees that it will
keep confidential all information with respect to the Company furnished to
it by the Company or Assignor (other than information generally available
to the public or otherwise available to Assignor on a nonconfidential
basis).
4. The effective date (the "Effective Date") for this Assignment
Agreement shall be the date of execution by the Administrative Agent and
the Company of this Assignment Agreement.
5. From and after the Effective Date, (i) Assignee shall be a
party to the Credit Agreement, and to the extent provided in this
Assignment Agreement, have the rights and obligations of a Bank, and (ii)
Assignor shall, to the extent provided in this Assignment Agreement,
relinquish its rights and be released from its obligations under the Credit
Agreement.
6. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of any interest assigned hereby
(including payments of principal, interest, fees and other amounts) to
J-2
Assignee. Assignor and Assignee shall make all appropriate adjustments for
payments for periods prior to the Effective Date by the Administrative
Agent and with respect to the making of this assignment directly between
themselves.
7. This Assignment Agreement shall be governed by, and construed
and enforced in accordance with, the Laws of the state of California
applicable to contracts made and performed in such state.
[NAME OF ASSIGNOR]
By:______________________
Title:___________________
[NAME OF ASSIGNEE]
By:______________________
Title:___________________
Accepted this _____ day of
____________________, 199_
CITICORP USA, INC.
as Administrative Agent
By:__________________________
Title:_______________________
AMGEN INC.
By:__________________________
Title:_______________________
J-3
SCHEDULE 1.1
------------
BORROWING SUBSIDIARIES
1. AMGEN PUERTO RICO, INC., a Delaware corporation, is a wholly owned
subsidiary of Amgen Inc.; has a principal business address of ▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇ 24.6, Juncos, Puerto Rico 00777-4060.
SCHEDULE 1.2
------------
WHOLLY OWNED SUBSIDIARIES
SUBSIDIARIES OF AMGEN INC.
--------------------------
1. AMGEN BOULDER DEVELOPMENT CORPORATION, a Colorado corporation having a
principal business address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
2. AMGEN BOULDER PRODUCTION CORPORATION, a Colorado corporation, having a
principal business address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
3. AMGEN CAMBRIDGE REAL ESTATE HOLDINGS INC., a Delaware corporation, is a
wholly owned subsidiary of Amgen Inc.; has a principal business address of ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇.
4. AMGEN HOLDING, INC., a California corporation, is a wholly owned subsidiary
of Amgen Inc.; has a principal business address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇.
5. AMGEN INTERNATIONAL INC., a Delaware corporation, is a wholly owned
subsidiary of Amgen Inc.; has a principal business address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇.
6. AMGEN KABUSHIKI KAISHA, a Japanese corporation, is a wholly owned subsidiary
of Amgen Inc.; has a principal business address of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇,
▇-▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇.
7. AMGEN PUERTO RICO, INC., a Delaware corporation, is a wholly owned
subsidiary of Amgen Inc.; has a principal business address of ▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇ 24.6, Juncos, Puerto Rico 00777-4060.
8. AMGEN SALES CORPORATION, a Barbados corporation and a foreign sales
corporation, is a wholly owned subsidiary of Amgen Inc.; has a principal
business address of c/o Corporate Services Limited, ▇▇▇▇▇▇▇▇▇ Rock, St. ▇▇▇▇▇▇▇,
Barbados, West Indies.
9. SYNERGEN EUROPE INC., a Colorado corporation, having a principal business
address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
SUBSIDIARIES OF SYNERGEN EUROPE INC.
------------------------------------
1. SYNERGEN B.V., a Dutch corporation, having a principal business address of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇ The Hague, The Netherlands.
2. SYNERGEN S.P.A., an Italian corporation, having a principal business address
of Amgen Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
1
SUBSIDIARIES OF AMGEN INTERNATIONAL INC.
----------------------------------------
1. AMGEN AB, a Swedish corporation, having a principal business address of
Ralambsvagen 17, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇-▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
2. AMGEN B.V., a Dutch corporation, is a wholly owned subsidiary of Amgen
International Inc.; having a principal business address of Elleboog 56, ▇.▇. ▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
3. AMGEN CARIBE CORPORATION, a Puerto Rican corporation, is a wholly owned
subsidiary of Amgen International Inc., having a principal business address of
▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ 24.6, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
2
SCHEDULE 2.1
------------
Bank Commitments
Banks Commitment Pro Rata Share
------------------------------ --------------- ---------------
ABN AMRO Bank N.V. $ 30,000,000.00 20%
Banca Commerciale Italiana, $ 25,000,000.00 16.66666667%
Los Angeles Foreign Branch
Bank of America NT&SA $ 30,000,000.00 20%
Sanwa Bank, Limited, $ 15,000,000.00 10%
Los Angeles Branch
Citicorp USA, Inc. $ 50,000,000.00 33.33333333%
TOTAL $150,000,000.00 100%
Commitments and Pro Rata Shares for
Letters of Credit Issued by
Citicorp USA, Inc.
Banks Commitment Pro Rata Share
------------------------------ --------------- ---------------
ABN AMRO Bank N.V. $ 30,000,000.00 20%
Banca Commerciale Italiana, $ 25,000,000.00 16.66666667%
Los Angeles Foreign Branch
Bank of America NT&SA $ 30,000,000.00 20%
Sanwa Bank, Limited, $ 15,000,000.00 10%
Los Angeles Branch
Citicorp USA, Inc. $ 50,000,000.00 33.33333333%
TOTAL $150,000,000.00 100%
SCHEDULE 4.4
------------
Subsidiaries
Subsidiaries of Amgen Inc.
--------------------------
1. AMGEN BOULDER DEVELOPMENT CORPORATION, a Colorado corporation having a
principal business address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
is a wholly owned subsidiary of Amgen Inc.; has 1,000 shares of capital stock
issued and outstanding.
2. AMGEN BOULDER PRODUCTION CORPORATION, a Colorado corporation, having a
principal business address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
is a wholly owned subsidiary of Amgen Inc.; has 1,000 shares of capital stock
issued and outstanding.
3. AMGEN CAMBRIDGE REAL ESTATE HOLDINGS INC., a Delaware corporation, is a
wholly owned subsidiary of Amgen Inc.; has a principal business address of ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; has 100 shares of
capital stock issued and outstanding.
4. AMGEN HOLDING, INC., a California corporation, is a wholly owned subsidiary
of Amgen Inc.; has a principal business address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; and is currently an inactive corporation;
has 100 shares of capital stock issued and outstanding.
5. AMGEN INTERNATIONAL INC., a Delaware corporation, is a wholly owned
subsidiary of Amgen Inc.; has a principal business address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; has 100 shares of capital stock
issued and outstanding.
6. AMGEN KABUSHIKI KAISHA, a Japanese corporation, is a wholly owned subsidiary
of Amgen Inc.; has a principal business address of Hamacho Center ▇▇▇▇▇▇▇▇, ▇▇▇,
▇-▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇; has 9,500 shares of
capital stock issued and outstanding.
7. AMGEN PUERTO RICO, INC., a Delaware corporation, is a wholly owned
subsidiary of Amgen Inc.; has a principal business address of ▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇ 24.6, Juncos, Puerto Rico 00777-4060; has 100 shares of capital stock
issued and outstanding.
8. AMGEN SALES CORPORATION, a Barbados corporation and a foreign sales
corporation, is a wholly owned subsidiary of Amgen, Inc.; has a principal
business address of c/o Corporate Services Limited, ▇▇▇▇▇▇▇▇▇ Rock, St.
▇▇▇▇▇▇▇, Barbados, West Indies; has 1,000 shares of capital stock issued and
outstanding.
9. SYNERGEN EUROPE INC., a Colorado corporation, having a principal business
address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, is a wholly owned
subsidiary of Amgen Inc.; has 1,000 shares of capital stock issued and
outstanding.
SUBSIDIARIES OF SYNERGEN EUROPE INC.
------------------------------------
1. SYNERGEN B.V., a Dutch corporation, having a principal business address of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ ▇▇ The Hague, The Netherlands, is a wholly owned
subsidiary of Synergen Europe, Inc.; has no shares of capital stock issued and
outstanding.
2. SYNERGEN S.P.A., an Italian corporation, having a principal business address
of Amgen Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
SUBSIDIARIES OF AMGEN INTERNATIONAL INC.
----------------------------------------
1. AMGEN AB, a Swedish corporation, wholly owned by Amgen International Inc.;
having a principal business address of Ralambsvagen 17, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇; has 3,000 shares of capital stock issued and outstanding.
2. AMGEN AUSTRALIA PTY LIMITED, an Australian corporation, is owned 96% by
Amgen International Inc. and 4% by Amgen Inc. with respect to the issued and
outstanding common stock; is owned 100% by Amgen International Inc. with respect
to the issued and outstanding preferred stock; has a principal business address
of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇; has 250 shares of common stock and 210 shares of preferred stock
issued and outstanding.
3. AMGEN - BIO-FARMACEUTICA, LDA., a Portuguese corporation, is owned 90% by
Amgen International Inc. and 10% by Amgen (Europe) AG; has a principal business
address of ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇, ▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; has
10,000,000 shares of capital stock issued and outstanding.
4. AMGEN B.V., a Dutch corporation, is a wholly owned subsidiary of Amgen
International Inc.; has a principal business address of Elleboog 56, ▇.▇. ▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; has 490 shares of capital stock issued and
outstanding.
5. AMGEN CANADA INC., a Canadian corporation, is owned 99% by Amgen
International Inc. and 1% by Amgen Inc.; has a principal business address of
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇; has 100 shares
of capital stock and 7,000,000 preference shares issued and outstanding.
6. AMGEN CARIBE CORPORATION, a Puerto Rico corporation, is wholly owned by
Amgen International Inc., has a principal business address of ▇▇▇▇▇ ▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇-▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇; has 1,000 shares of capital
stock issued and outstanding.
7. AMGEN (EUROPE) AG, a Swiss corporation, is owned 99.85% by Amgen
International Inc.; has a principal address of Alpenquai 30, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇; has 2,000 shares of capital stock issued and outstanding.
8. AMGEN EUROPE B.V., a Dutch corporation, is a wholly owned subsidiary of
Amgen International Inc.; has a principal business address of European Logistics
Center, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇ Breda, The Netherlands; has 300 shares of capital
stock issued and outstanding.
9. AMGEN GMBH (AUSTRIA), an Austrian corporation, is owned 99.96% by Amgen
International Inc.; has a principal business address of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇,
▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; has 2,450 shares of capital stock issued and outstanding.
10. AMGEN GMBH, a German corporation, has no shares of capital stock issued and
outstanding; has a principal business address of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇.
11. AMGEN GREATER CHINA, LTD., a Hong Kong corporation, is owned 99.99% by
Amgen International Inc. and less than 1% by Amgen Inc.; has a principal
business ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇-▇, ▇▇/▇, ▇▇▇ Sing Financial Centre, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇; has 5,360,000 shares of capital stock issued and
outstanding.
12. AMGEN LIMITED, a United Kingdom corporation, is owned 99.99% by Amgen
International Inc.; has a principal business address of 240 Cambridge Science
Park, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; has 2,900,000 shares of
capital stock issued and outstanding.
13. AMGEN N.V., a Belgian corporation, is owned 99.99% by Amgen International
Inc.; has a principal business address of ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇; has 7,000 shares of capital stock issued and outstanding.
14. AMGEN S.A., a French corporation, is owned 99.97% by Amgen International
Inc. and less than 1% by each of Amgen Inc., Amgen (Europe) AG, Amgen B.V.,
Amgen GmbH and Amgen Limited; has a principal business address of ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇; has 20,500 shares of capital
stock issued and outstanding.
15. AMGEN S.A., a Spanish corporation, is owned 99.99% by Amgen International
Inc.; has a principal business address of ▇▇▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇, ▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇; has 54,000 shares of capital stock issued and outstanding.
16. AMGEN S.P.A., an Italian corporation, is owned 98% by Amgen International
Inc. and 2% by Amgen (Europe) AG; has a principal business address of ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇; has 499,000 shares of capital stock issued
and outstanding.
JOINT VENTURES
--------------
1. KIRIN-AMGEN, INC., a Delaware corporation, is owned 50% by Amgen Inc. and
50% by Kirin Brewery Company, Ltd.; has a principal business address of ▇/▇
▇▇▇▇▇ (▇▇▇▇▇▇) ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇; has
1,000 shares of capital stock issued and outstanding.
2. AMGEN-REGENERON PARTNERS, a Delaware general partnership, is owned 50% by
Amgen Inc. and 50% by Regeneron Pharmaceuticals Inc. and has a principal
business address of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-
1789.
SCHEDULE 4.8
------------
LITIGATION
None.
1
SCHEDULE 4.15
-------------
ENVIRONMENTAL MATTERS
None.
SCHEDULE 6.5
------------
LIENS AND RIGHTS OF OTHERS
None.