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EXHIBIT (10)(n)
AMENDED AND RESTATED COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY, dated as
of January 3, 2000, among DELPHI AUTOMOTIVE SYSTEMS CORPORATION, a Delaware
corporation (the "Borrower"), the several banks and other financial institutions
from time to time parties to this Agreement (the "Lenders"), BANK OF AMERICA,
NATIONAL ASSOCIATION, CITIBANK, N.A., DEUTSCHE BANK AG NEW YORK BRANCH, BARCLAYS
BANK PLC and BANQUE NATIONALE DE PARIS, as syndication agents (collectively, the
"Syndication Agents"), and THE CHASE MANHATTAN BANK, as administrative agent for
the Lenders hereunder (in such capacity, the "Administrative Agent").
The parties hereto hereby agree as follows:
SECTION . DEFINITIONS
. Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day, (b) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1% and (c) the Base CD Rate in effect on such day plus 1%. "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month Secondary
CD Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and (b) the C/D
Assessment Rate; "Three-Month Secondary CD Rate" shall mean, for any day,
the secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall not be a Business Day,
the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business Day)
by the Administrative Agent from three New York City negotiable certificate
of deposit dealers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, the ABR shall be determined without
regard to clause (b) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in
the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate
or the Three-Month Secondary CD Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the Federal
Funds Effective Rate or the Three-Month Secondary CD Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
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"Agreement": this Agreement, as amended, supplemented or otherwise
modified from time to time.
"Applicable Margin": as defined in subsection 2.9(e).
"Assignee": as defined in subsection 9.6(c).
"Available Commitment": as to any Lender at any time, the excess, if
any, of such Lender's Commitment over such Lender's Revolving Credit Loans.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrowing": a group of Loans of a single Type made by the Lenders (or,
in the case of a Competitive Borrowing, by the Lender or Lenders whose
Competitive Bids have been accepted pursuant to subsection 2.3) on a single
date and as to which a single Interest Period is in effect.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close; provided that when used in connection with a Eurodollar Loan, the
term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member of
the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. ss. 327.4 (or any successor
provision) to the FDIC (or any successor) for the FDIC's (or such
successor's) insuring time deposits at offices of such institution in the
United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for
a Depositary Institution (as defined in Regulation D of the Board as in
effect from time to time) in respect of new non-personal time deposits in
Dollars having a maturity of 30 days or more.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which each of the conditions precedent set
forth in subsection 4.1 shall have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Lender, the obligation of such Lender to make
Revolving Credit Loans to the Borrower hereunder in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I, as such amount may be reduced
from time to time in accordance with the provisions of this Agreement.
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"Commitment Percentage": as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the aggregate Commitments
(or, at any time after the Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's Loans then
outstanding constitutes of the aggregate principal amount of the Loans then
outstanding).
"Commitment Period": the period from and including the date hereof to
but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Competitive Bid": an offer by a Lender to make a Competitive Loan
pursuant to subsection 2.3.
"Competitive Bid Accept/Reject Letter": a notification made by the
Borrower pursuant to subsection 2.3(f) in the form of Exhibit D.
"Competitive Bid Lenders": the Lenders specified on Schedule I as being
"Competitive Bid Lenders."
"Competitive Bid Rate": as to any Competitive Bid made by a Lender
pursuant to subsection 2.3, (i) in the case of a Eurodollar Competitive
Loan, the Eurodollar Rate plus (or minus) the Margin, and (ii) in the case
of a Fixed Rate Loan, the fixed rate of interest offered by the Lender
making such Competitive Bid.
"Competitive Bid Request": a request made pursuant to subsection 2.3(b)
in the form of Exhibit A.
"Competitive Borrowing": a Borrowing consisting of a Competitive Loan
or concurrent Competitive Loans from the Lender or Lenders whose Competitive
Bids for such Borrowing have been accepted by a Borrower under the bidding
procedure described in subsection 2.3.
"Competitive Loan": a Loan (which shall be a Eurodollar Competitive
Loan or a Fixed Rate Loan) made by a Lender pursuant to the bidding
procedure described in subsection 2.3.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated November 1999 and furnished to the Lenders.
"Consolidated EBITDA": for any period, Consolidated Net Income for such
period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of
(a) income tax expense, (b) interest expense (other than interest expense or
discount during such period attributable to Permitted Receivables Financing
with an aggregate principal amount not in excess of $1,500,000,000), (c)
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (d) depreciation and amortization
expense, (e) amortization of intangibles (including, but not limited to,
goodwill) and organization costs and (f) any
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extraordinary, unusual or non-recurring non-cash expenses or losses, and
minus, to the extent included in the statement of such Consolidated Net
Income for such period, the sum of (a) interest income and (b) any
extraordinary, unusual or non-recurring income or gains, all as determined
on a consolidated basis. For the purposes of calculating Consolidated EBITDA
for any period of four consecutive fiscal quarters (each, a "Reference
Period") pursuant to any determination of the Consolidated Leverage Ratio,
if during such Reference Period the Borrower or any Subsidiary shall have
made a Material Acquisition, Consolidated EBITDA for such Reference Period
shall be calculated after giving pro forma effect thereto as if such
Material Acquisition occurred on the first day of such Reference Period. As
used in this paragraph, "Material Acquisition" means any acquisition of
property or series of related acquisitions of property that involves the
payment of consideration (including, without limitation, the assumption of
debt) by the Borrower and its Subsidiaries in excess of $10,000,000.
"Consolidated Leverage Ratio": as at any day, the ratio of (a)
Consolidated Total Debt on such day (other than any Permitted Receivables
Financing outstanding on such date in an aggregate principal amount not to
exceed $1,500,000,000 and any other Non-Recourse Debt not related to
accounts receivable of the Borrower or any of its Subsidiaries) to (b)
Consolidated EBITDA for the period of four fiscal quarters ending on or most
recently prior to such day.
"Consolidated Net Income": for any period, the consolidated net income
(or loss) of the Borrower and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
"Consolidated Total Assets": at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption "total assets" (or
any like caption) on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date.
"Consolidated Total Debt": at any date and without duplication, (i) the
aggregate principal amount of (i) all Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis and (ii) all guarantees by the Borrower
or any of its Subsidiaries of Indebtedness on a consolidated basis of any
other Person (other than the Borrower or a Subsidiary) at such date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
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"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental
Authority, relating to the environment, preservation or reclamation of
natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters relating to the
environment.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Subsidiary directly
or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Board) maintained by a
member bank of such System.
"Eurodollar Borrowing": a Borrowing comprised of Eurodollar Loans.
"Eurodollar Competitive Loan": any Competitive Loan bearing interest at
a rate determined by reference to the Eurodollar Rate.
"Eurodollar Loan": any Eurodollar Competitive Loan or Eurodollar
Revolving Credit Loan.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate of interest determined on the
basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Dow ▇▇▇▇▇ Markets Page as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period. In the event that such rate does not appear on Page 3750 of the Dow
▇▇▇▇▇ Markets Page (or otherwise on such service), the "Eurodollar Rate"
shall be determined by reference to such other publicly available service
for displaying eurodollar rates as may be agreed upon by the Administrative
Agent and the Borrower or, in the absence of such agreement, the "Eurodollar
Rate" shall instead be the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Lenders as the rate at which
such Reference Lender is offered Dollar deposits at or about 10:00 A.M., New
York City time, two Business Days prior to the beginning of such Interest
Period in the interbank eurodollar market where the eurodollar and foreign
currency and exchange operations in respect of its Eurodollar Loans are then
being conducted for delivery on the first day of such Interest Period for
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the number of days comprised therein and in an amount comparable to the
amount of its Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Reserve Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined
for such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Rate
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1.00 - Eurocurrency Reserve Requirements
"Eurodollar Revolving Credit Loan": any Revolving Credit Loan bearing
interest at a rate determined by reference to the Eurodollar Rate.
"Event of Default": any of the events specified in Section 7; provided
that any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day of such rates on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Financial Officer": with respect to any Person, the chief financial
officer, principal accounting officer, a financial vice president, treasurer
or assistant treasurer of such Person.
"Fixed Rate Borrowing": a Borrowing comprised of Fixed Rate Loans.
"Fixed Rate Loan": any Competitive Loan bearing interest at a fixed
percentage rate per annum specified by the Lender making such Loan in its
Competitive Bid.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time and as applied by the Borrower in
the preparation of its most recent financial statements delivered pursuant
to subsection 3.1(b); provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the
date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the
Majority Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
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"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of government.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Indebtedness": of any Person at any date, the amount outstanding on
such date under notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (including, without limitation, indebtedness
for borrowed money evidenced by a loan account).
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding
and on the date such Loan is paid in full, (b) as to any Eurodollar Loan or
Fixed Rate Loan, the last day of the Interest Period applicable thereto and
(c) as to any Eurodollar Loan or Fixed Rate Loan, having an Interest Period
longer than three months or 90 days, as the case may be, each day which is
three months or 90 days, as the case may be, after the first day of the
Interest Period applicable thereto; provided that, in addition to the
foregoing, each of (x) the date upon which both the Commitments have been
terminated and the Loans have been paid in full and (y) the Termination Date
shall be deemed to be an "Interest Payment Date" with respect to any
interest which is then accrued hereunder.
"Interest Period": () with respect to any Eurodollar Loan:
() initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six (or if available to all the Lenders (or,
in the case of Eurodollar Competitive Loans, the Lender making such
Loans) nine) months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may be, given
with respect thereto; and
() thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six (or if available to all the Lenders (or, in the
case of Eurodollar Competitive Loans, the Lender making such Loans)
nine) months thereafter, as selected by the Borrower by irrevocable
notice to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with respect
thereto; and
() with respect to any Fixed Rate Loan, the period commencing
on the borrowing date with respect to such Fixed Rate Loan and ending such
number of days thereafter (which shall be not less than seven days or more
than 180 days after the date of such borrowing) as selected by the Borrower
in its Competitive Bid Request given with respect thereto.
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provided that all of the foregoing provisions relating to Interest Periods
are subject to the following:
() if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of an Interest Period
pertaining to a Eurodollar Loan, the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day; and
() any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
Notwithstanding anything to the contrary contained in this Agreement, no
Interest Period shall be selected by the Borrower which ends on a date after
the Termination Date.
"Invitation for Competitive Bids": an invitation made by the Borrower
pursuant to subsection 2.3(c) in the form of Exhibit B.
"Level I Status": exists at any date if, at such date, the Borrower has
senior unsecured long-term debt outstanding, without third-party credit
enhancement, which is rated A- or better by S&P and A3 or better by Moody's;
provided that if either S&P or Moody's shall cease to issue ratings of debt
securities generally, then the Administrative Agent and the Borrower shall
negotiate in good faith to agree upon a substitute rating agency (and to
correlate the system of ratings of such substitute rating agency with that
of the rating agency for which it is substituting) and (a) until such
substitute rating agency is agreed upon, the foregoing test may be satisfied
on the basis of the rating assigned by the other such rating agency and (b)
after such substitute rating agency is agreed upon, the foregoing test may
be satisfied on the basis of the rating assigned by the other rating agency
and such substitute rating agency.
"Level II Status": exists at any date if, at such date, Level I Status
does not exist and the Borrower has senior unsecured long-term debt
outstanding, without third-party credit enhancement, which is rated BBB+ or
better by S&P and Baa1 or better by Moody's; provided that if either S&P or
Moody's shall cease to issue ratings of debt securities generally, then the
Administrative Agent and the Borrower shall negotiate in good faith to agree
upon a substitute rating agency (and to correlate the system of ratings of
such substitute rating agency with that of the rating agency for which it is
substituting) and (a) until such substitute rating agency is agreed upon,
the foregoing test may be satisfied on the basis of the rating assigned by
the other such rating agency and (b) after such substitute rating agency is
agreed upon, the foregoing test may be satisfied on the basis of the rating
assigned by the other rating agency and such substitute rating agency.
"Level III Status": exists at any date if, at such date, neither Level
I Status nor Level II Status exists and the Borrower has senior unsecured
long-term debt outstanding, without third party credit enhancement, which is
rated BBB or better by S&P and Baa2 or better by Moody's; provided that if
either S&P or Moody's shall cease to issue ratings of
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debt securities generally, then the Administrative Agent and the Borrower
shall negotiate in good faith to agree upon a substitute rating agency (and
to correlate the system of ratings of such substitute rating agency with
that of the rating agency for which it is substituting) and (a) until such
substitute rating agency is agreed upon, the foregoing test may be satisfied
on the basis of the rating assigned by the other such rating agency and (b)
after such substitute rating agency is agreed upon, the foregoing test may
be satisfied on the basis of the rating assigned by the other rating agency
and such substitute rating agency.
"Level IV Status": exists at any date if, at such date, none of Level I
Status, Level II Status or Level III Status exists and the Borrower has
senior unsecured long-term debt outstanding, without third party credit
enhancement, which is rated BBB- or better by S&P and Baa3 or better by
Moody's; provided that if either S&P or Moody's shall cease to issue ratings
of debt securities generally, then the Administrative Agent and the Borrower
shall negotiate in good faith to agree upon a substitute rating agency (and
to correlate the system of ratings of such substitute rating agency with
that of the rating agency for which it is substituting) and (a) until such
substitute rating agency is agreed upon, the foregoing test may be satisfied
on the basis of the rating assigned by the other such rating agency and (b)
after such substitute rating agency is agreed upon, the foregoing test may
be satisfied on the basis of the rating assigned by the other rating agency
and such substitute rating agency.
"Level V Status": exists at any date if, at such date, none of Level I
Status, Level II Status, Level III Status or Level IV Status exists.
"Lien": any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
"Loan": a Competitive Loan or a Revolving Credit Loan, as the context
shall require; collectively, the "Loans."
"Majority Lenders": at any time, Lenders whose Commitment Percentages
represent at least 51% of the aggregate Commitments or, if the Commitments
are terminated or for purposes of acceleration pursuant to Section 7,
Lenders holding Loans representing at least 51% of the aggregate principal
amount of all Loans outstanding.
"Margin": as to any Eurodollar Competitive Loan, the margin to be added
to or subtracted from the Eurodollar Rate in order to determine the interest
rate applicable to such Loan, as specified in the Competitive Bid relating
to such Loan.
"Material Adverse Effect": a material adverse effect on (a) the
financial condition of the Borrower and its Subsidiaries taken as a whole or
(b) the validity or enforceability of this Agreement or the rights or
remedies of the Administrative Agent and the Lenders hereunder.
"Material Agreements": the agreements set forth on Schedule III.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
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"Non-Recourse Debt": all Indebtedness which, in accordance with GAAP,
is not required to be recognized on a consolidated balance sheet of the
Borrower as a liability.
"Original Closing Date": January 4, 1999.
"Participant": as defined in subsection 9.6(b).
"Permitted Receivables Financing": at any date of determination, the
aggregate amount of any Non-Recourse Debt outstanding on such date relating
to securitizations or other similar off-balance sheet financings of accounts
receivable of the Borrower or any of its Subsidiaries.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Prime Rate": the rate of interest per annum equal to the prime rate
publicly announced by the majority of the Reference Lenders as its prime
rate (or similar base rate) in effect at its principal office.
"Reference Lenders": The Chase Manhattan Bank, Bank of America,
National Association, Citibank, N.A., ▇▇▇▇▇▇ Guaranty Trust Company and the
Bank of New York.
"Register": as defined in subsection 9.6(d).
"Requirement of Law": as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property
is subject.
"Revolving Credit Loans": as defined in subsection 2.1(a) and shall in
any event include any Loans that remain outstanding after the Termination
Date pursuant to subsection 2.8.
"Sale-Leasebacks": as defined in subsection 6.4.
"S&P": Standard & Poor's Corporation and its successors.
"Significant Subsidiary": at any time, any Subsidiary of the Borrower
which has at least 5% of the consolidated revenues of the Borrower and its
Subsidiaries at such time as reflected in the most recent annual audited
consolidated financial statements of the Borrower.
"Status": as to the Borrower, the existence of Level I Status, Level II
Status, Level III Status, Level IV Status or Level V Status, as the case may
be.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having
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ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect
a majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned by such Person, or by one
or more Subsidiaries, or by such Person and one or more Subsidiaries. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"Termination Date": December 29, 2000.
"Transferee": as defined in subsection 9.6(f).
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan or a
Eurodollar Loan, and as to any Competitive Loan, its nature as a Eurodollar
Competitive Loan or a Fixed Rate Loan.
"Utilization": as of the last day of any fiscal quarter of the
Borrower, the percentage equivalent of a fraction (i) the numerator of which
is the average daily principal amount of Loans outstanding (after giving
effect to any borrowing or payment on such date) during such quarter and
(ii) the denominator of which is the average daily amount of the aggregate
Commitments of all Lenders during such quarter, after giving effect to any
reduction of the Commitments on such day. For purposes of subsection 2.9(e),
if for any reason any Loans remain outstanding after termination of the
Commitments, the Utilization for each day on or after the date of such
termination shall be deemed to be greater than 33%.
. Other Definitional Provisions. () Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used
in any certificate or other document made or delivered pursuant hereto.
() As used herein, and any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in subsection 1.1 and accounting terms partly defined
in subsection 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
() The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
() The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION . AMOUNT AND TERMS OF THE FACILITIES
. Revolving Credit Commitments. () Subject to the terms and conditions
hereof, each Lender severally agrees to make revolving credit loans ("Revolving
Credit Loans") to the Borrower from time to time during the Commitment Period in
an aggregate principal amount at
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any one time outstanding which does not exceed the amount of such Lender's
Commitment. During the Commitment Period, the Borrower may use the Commitments
by borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
Notwithstanding anything to the contrary contained in this Agreement, in no
event (after giving effect to the use of proceeds of any Borrowing) shall (i)
the amount of any Lender's Commitment Percentage of a Borrowing of Revolving
Credit Loans exceed such Lender's Available Commitment at the time of such
Borrowing or (ii) the aggregate amount of Revolving Credit Loans and Competitive
Loans at any one time outstanding exceed the aggregate Commitments then in
effect of all Lenders.
() The Revolving Credit Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with subsections
2.2 and 2.6; provided that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Termination Date.
. Procedure for Revolving Credit Borrowing. The Borrower may borrow
Revolving Credit Loans under the Commitments during the Commitment Period on any
Business Day; provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 12:00 Noon, New York City time, (a) three Business Days prior to the
requested borrowing date, if all or any part of the requested Revolving Credit
Loans are to be Eurodollar Loans, or (b) one Business Day prior to the requested
borrowing date, otherwise), specifying (i) the amount to be borrowed, (ii) the
requested borrowing date, (iii) whether the Borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the Borrowing is to be
entirely or partly of Eurodollar Loans, the respective amounts of each such Type
of Loan and the respective lengths of the initial Interest Periods therefor.
Each Borrowing under the Commitments shall be in an amount equal to $10,000,000
or a multiple of $1,000,000 in excess thereof. Upon receipt of any such notice
from the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata share of each
Borrowing available to the Administrative Agent for the account of the Borrower
at the office of the Administrative Agent specified in subsection 9.2 prior to
11:00 A.M., New York City time, on the borrowing date requested by the Borrower
in funds immediately available to the Administrative Agent. Such Borrowing will
then immediately be made available to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
. Competitive Borrowings.
() The Competitive Bid Option. In addition to the Revolving Credit
Loans which may be made available pursuant to subsection 2.1, the Borrower may,
as set forth in this subsection 2.3, request the Lenders to make offers to make
Competitive Loans to the Borrower during the Commitment Period. The Lenders may,
but shall have no obligation to, make such offers, and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth in
this subsection 2.3.
() Competitive Bid Request. When the Borrower wishes to request offers
to make Competitive Loans under this subsection 2.3, it shall transmit to the
Administrative Agent a Competitive Bid Request to be received no later than
12:00 Noon (New York City time) on (x)
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the fourth Business Day prior to the date of Borrowing proposed therein, in the
case of a Borrowing of Eurodollar Competitive Loans or (y) the Business Day
immediately preceding the date of Borrowing proposed therein, in the case of a
Fixed Rate Borrowing, specifying:
() the proposed date of Borrowing, which shall be a Business
Day,
() the aggregate principal amount of such Borrowing, which
shall be $10,000,000 or a multiple of $1,000,000 in excess thereof,
() the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period contained in
subsection 1.1, and
() whether the Borrowing then being requested is to be of
Eurodollar Competitive Loans or Fixed Rate Loans.
A Competitive Bid Request that does not conform substantially to the format
of Exhibit A may be rejected by the Administrative Agent in its sole
discretion, and the Administrative Agent shall promptly notify the Borrower
of such rejection. The Borrower may request offers to make Competitive Loans
for more than one Interest Period in a single Competitive Bid Request. No
Competitive Bid Request shall be given within three Business Days of any
other Competitive Bid Request pursuant to which the Borrower has made a
Competitive Borrowing.
() Invitation for Competitive Bids. Promptly after its receipt of
a Competitive Bid Request (but, in any event, no later than 3:00 P.M., New
York City time, on the date of such receipt) conforming to the requirements
of paragraph (b) above, the Administrative Agent shall send to each of the
Competitive Bid Lenders an Invitation for Competitive Bids which shall
constitute an invitation by the Borrower to each such Lender to bid, on the
terms and conditions of this Agreement, to make Competitive Loans pursuant
to the Competitive Bid Request.
() Submission and Contents of Competitive Bids. () Each Lender to
which an Invitation for Competitive Bids is sent may submit a Competitive
Bid containing an offer or offers to make Competitive Loans in response to
such Invitation for Competitive Bids. Each Competitive Bid must comply with
the requirements of this paragraph (d) and must be submitted to the
Administrative Agent at its offices specified in subsection 9.2 not later
than (x) 9:30 A.M. (New York City time) on the third Business Day prior to
the proposed date of Borrowing, in the case of a Borrowing of Eurodollar
Competitive Loans or (y) 9:30 A.M. (New York City time) on the date of the
proposed Borrowing, in the case of a Fixed Rate Borrowing; provided that any
Competitive Bids submitted by the Administrative Agent in the capacity of a
Lender may only be submitted if the Administrative Agent notifies the
Borrower of the terms of the offer or offers contained therein not later
than fifteen minutes prior to the deadline for the other Lenders. A
Competitive Bid submitted by a Lender pursuant to this paragraph (d) shall
be irrevocable.
() Each Competitive Bid shall be in substantially the form of
Exhibit C and shall specify:
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(A) the date of the proposed Borrowing,
(B) the principal amount of the Competitive Loan for which each
such offer is being made, which principal amount (w) may be greater than,
equal to or less than the Commitment of the quoting Lender, (x) must be in a
minimum principal amount of $5,000,000 or a multiple of $1,000,000 in excess
thereof, (y) may not exceed the principal amount of Competitive Loans for
which offers were requested and (z) may be subject to a limitation as to the
maximum aggregate principal amount of Competitive Loans for which offers
being made by such quoting Lender may be accepted,
(C) in the case of a Borrowing of Eurodollar Competitive Loans,
the Margin offered for each such Competitive Loan, expressed as a percentage
(specified in increments of 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of a Fixed Rate Borrowing, the rate of interest
per annum (specified in increments of 1/10,000th of 1%) offered for each
such Competitive Loan, and
(E) the identity of the quoting Lender.
A Competitive Bid may set forth up to five separate offers by the quoting
Lender with respect to each Interest Period specified in the related
Invitation for Competitive Bids. Any Competitive Bid shall be disregarded by
the Administrative Agent if the Administrative Agent determines that it: (A)
is not substantially in the form of Exhibit C or does not specify all of the
information required by subsection 2.3(d)(ii); (B) contains qualifying,
conditional or similar language (except for a limitation on the maximum
principal amount which may be accepted); (C) proposes terms other than or in
addition to those set forth in the applicable Invitation for Competitive
Bids or (D) arrives after the time set forth in subsection 2.3(d)(i).
() Notice to Borrower. The Administrative Agent shall
promptly (and, in any event, by 10:00 A.M., New York City time) notify the
Borrower, by telecopy, of all the Competitive Bids made (including all
disregarded bids), the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid was made and the
identity of the Lender that made each bid. The Administrative Agent shall
send a copy of all Competitive Bids (including all disregarded bids) to the
Borrower for its records as soon as practicable after completion of the
bidding process set forth in this subsection 2.3.
() Acceptance and Notice by Borrower. The Borrower may in its
sole discretion, subject only to the provisions of this paragraph (f),
accept or reject any Competitive Bid (other than any disregarded bid)
referred to in paragraph (e) above. The Borrower shall notify the
Administrative Agent by telephone, confirmed immediately thereafter by
telecopy in the form of a Competitive Bid Accept/Reject Letter, whether and
to what extent it wishes to accept any or all of the bids referred to in
paragraph (e) above not later than (x) 10:30 A.M. (New York City time) on
the third Business Day prior to the proposed date of Borrowing, in the case
of a Competitive Eurodollar Borrowing or (y) 10:30 A.M. (New York City time)
on the proposed date of Borrowing, in the case of a Fixed Rate Borrowing;
provided that:
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() the failure by the Borrower to give such notice shall
be deemed to be a rejection of all the bids referred to in paragraph (e)
above;
() the aggregate principal amount of the Competitive
Bids accepted by the Borrower may not exceed the lesser of (A) the principal
amount set forth in the related Competitive Bid Request and (B) the excess,
if any, of the aggregate Commitments of all Lenders then in effect over the
aggregate principal amount of all Loans outstanding immediately prior to the
making of such Competitive Loans (and after giving effect to the use of
proceeds thereof),
() the principal amount of each Competitive Borrowing
must be $5,000,000 or a multiple of $1,000,000 in excess thereof,
() unless there are any limitations contained in a
quoting Lender's Competitive Bid, the Borrower may not accept a Competitive
Bid made at a particular Competitive Bid Rate if it has decided to reject
any portion of a bid made at a lower Competitive Bid Rate for the same
Interest Period, and
() the Borrower may not accept any Competitive Bid that
is disregarded by the Administrative Agent pursuant to subsection 2.3(d)(ii)
or that otherwise fails to comply with the requirements of this Agreement.
A notice given by the Borrower pursuant to this paragraph (f) shall be
irrevocable.
() Allocation by Administrative Agent. If offers are made by
two or more Lenders with the same Competitive Bid Rates for a greater
aggregate principal amount than the amount in respect of which such offers
are accepted for the related Interest Period, the principal amount of
Competitive Loans in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Lenders as nearly as
possible (in integral multiples of $1,000,000, as the Administrative Agent
may deem appropriate) in proportion to the aggregate principal amounts of
such offers.
() Notification of Acceptance. The Administrative Agent shall
promptly (and, in any event, by 11:00 A.M., New York City time) notify each
bidding Lender whether or not its Competitive Bid has been accepted (and if
so, in what amount and at what Competitive Bid Rate), and each successful
bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan in respect of which its bid
has been accepted.
. Termination or Reduction of Commitments. The Borrower shall
have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Commitments when no Loans are then
outstanding or, from time to time, to reduce the unutilized portion of the
Commitments. Any such reduction shall be in an amount equal to $10,000,000
or a multiple of $1,000,000 in excess thereof and shall reduce permanently
the Commitments then in effect.
. Prepayments. The Borrower may, at any time and from time to
time, prepay the Revolving Credit Loans, in whole or in part, without
premium or penalty (but
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subject to the provisions of subsection 2.17), upon at least two Business
Days' irrevocable notice to the Administrative Agent, specifying the date
and amount of prepayment and whether the prepayment is of Eurodollar
Revolving Credit Loans, ABR Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall be
due and payable on the date specified therein, together with any amounts
payable pursuant to subsection 2.17. Partial prepayments shall be in an
aggregate principal amount of $10,000,000 or a multiple of $1,000,000 in
excess thereof. Notwithstanding anything to the contrary contained herein,
the Borrower shall not prepay the Competitive Loans except pursuant to
Section 7 or with the consent of the Competitive Bid Lender which has made
such Competitive Loan.
. Conversion and Continuation Options. () The Borrower may
elect from time to time to convert Eurodollar Revolving Credit Loans to ABR
Loans by giving the Administrative Agent at least one Business Day's prior
irrevocable notice of such election; provided that any such conversion of
Eurodollar Revolving Credit Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to
time to convert ABR Loans to Eurodollar Revolving Credit Loans by giving the
Administrative Agent at least three Business Days' prior irrevocable notice
of such election. Any such notice of conversion to Eurodollar Revolving
Credit Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. All or any
part of outstanding Eurodollar Revolving Credit Loans and ABR Loans may be
converted as provided herein; provided that (i) no Loan may be converted
into a Eurodollar Revolving Credit Loan when any Event of Default has
occurred and is continuing and (ii) no Loan may be converted into a
Eurodollar Revolving Credit Loan after the date that is one month prior to
the Termination Date.
() Any Eurodollar Revolving Credit Loans may be continued as
such upon the expiration of the then current Interest Period with respect
thereto by the Borrower giving notice to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period" set
forth in subsection 1.1, of the length of the next Interest Period to be
applicable to such Loans; provided that no Eurodollar Revolving Credit Loan
may be continued as such (i) when any Event of Default has occurred and is
continuing or (ii) after the date that is one month prior to the Termination
Date and provided, further, that if the Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation
is not permitted pursuant to the preceding proviso such Eurodollar Revolving
Credit Loans shall be automatically converted to ABR Loans on the last day
of such then expiring Interest Period.
. Minimum Amounts of Eurodollar Borrowings. All borrowings,
conversions and continuations of Revolving Credit Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Revolving Credit Loans comprising each
Eurodollar Borrowing shall be equal to $10,000,000 or a multiple of
$1,000,000 in excess thereof and so that there shall not be more than 20
Eurodollar Borrowings outstanding at any one time.
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. Repayment of Loans; Evidence of Debt. () The Borrower
hereby unconditionally promises to pay to each Lender (i) on the Termination
Date (or such earlier date as the Loans become due and payable pursuant to
Section 7 or subsection 2.5), the unpaid principal amount of each Loan made
by such Lender; provided, that, at the Borrower's option any Loans
outstanding on the Termination Date shall be due and payable in full on the
date which is one year following the Termination Date (or such earlier date
as the Loans become due and payable pursuant to Section 7 or subsection 2.5)
and (ii) on the last day of the applicable Interest Period, the unpaid
principal amount of each Competitive Loan made by such Lender. The Borrower
hereby further agrees to pay interest in immediately available funds at the
office of the Administrative Agent on the unpaid principal amount of such
Loans from time to time from the date hereof until payment in full thereof
at the rates per annum, and on the dates, set forth in subsection 2.9.
() Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower
to the appropriate lending office of such Lender resulting from each Loan
made by such lending office of such Lender from time to time, including the
amounts of principal and interest payable and paid to such lending office of
such Lender from time to time under this Agreement.
() The Administrative Agent shall maintain the Register
pursuant to subsection 9.6(d), and a subaccount for each Lender, in which
Register and subaccounts (taken together) shall be recorded (i) the amount
of each Loan made hereunder, the Type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
() The entries made in the Register and accounts maintained
pursuant to paragraphs (b) and (c) of this subsection 2.8 shall, to the
extent permitted by applicable law, be prima facie evidence of the existence
and amounts of the obligations of the Borrower therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to
maintain such account, such Register or such subaccount, as applicable, or
any error therein, shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Loans made to the Borrower
by such Lender in accordance with the terms of this Agreement.
. Interest Rates and Payment Dates. () Each ABR Loan shall
bear interest at a rate per annum equal to the ABR.
() The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to (i) in the case of each Eurodollar
Revolving Credit Loan, the Eurodollar Rate for the Interest Period in effect
for such Borrowing plus the Applicable Margin and (ii) in the case of each
Eurodollar Competitive Loan, the Eurodollar Rate for the Interest Period in
effect for such Borrowing plus (or minus, as the case may be) the Margin
offered by the Lender making such Loan and accepted by the Borrower pursuant
to subsection 2.3.
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() Each Fixed Rate Loan shall bear interest at a rate per
annum equal to the fixed rate of interest offered by the Lender making such
Loan and accepted by the Borrower pursuant to subsection 2.3.
() Subject to the provisions of the following sentence,
interest shall be payable in arrears on each Interest Payment Date; provided
that interest accruing pursuant to paragraph (f) of this subsection 2.9
shall be payable from time to time on demand. The amount of interest on
Revolving Credit Loans to be paid on any Interest Payment Date shall be the
amount which would be due and payable if the Utilization for the period for
which such interest is paid was less than 33%. On the first Business Day
following the last day of each fiscal quarter of the Borrower and on the
Termination Date (or, if earlier, on the date upon which both the
Commitments are terminated and the Loans are paid in full), the Borrower
shall pay to the Administrative Agent, for the ratable benefit of the
Lenders, an additional amount of interest equal to the difference (if any)
between (i) the amount of interest which would have been payable during such
fiscal quarter (or, in the case of the payment due on the Termination Date,
the portion thereof ending on such date) after giving effect to the actual
Utilization during such period and (ii) the amount of interest which
actually was paid during such period.
() The "Applicable Margin" with respect to each Revolving
Credit Loan at any date shall be the applicable percentage amount set forth
in the table below based upon the Type of such Loan and the Utilization and
Status on such date:
------------------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V
Status Status Status Status Status
------ ------ ------ ------ ------
------------------------------------------------------------------------------------------------------------
If Utilization is less than
33%:
------------------------------------------------------------------------------------------------------------
Eurodollar Loans 0.3200% 0.4100% 0.5000% 0.8750% 1.0750%
------------------------------------------------------------------------------------------------------------
ABR Loans 0% 0% 0% 0% 0%
------------------------------------------------------------------------------------------------------------
If Utilization is equal to
or greater than 33%:
------------------------------------------------------------------------------------------------------------
Eurodollar Loans 0.4450% 0.5350% 0.6250% 0.8750% 1.0750%
------------------------------------------------------------------------------------------------------------
ABR Loans 0% 0% 0% 0% 0%
------------------------------------------------------------------------------------------------------------
() If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any facility fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal,
the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection 2.9 plus 2% or (y) in the case of
overdue interest, facility fee or other amount, the rate described in
paragraph (a) of this subsection 2.9 plus 2%, in each case from the date of
such non-payment until such amount is paid in full (as well after as before
judgment). For purposes of this Agreement, principal shall be "overdue" only
if not paid in accordance with the provisions of subsection 2.8.
. Facility Fee. The Borrower shall pay to the Administrative
Agent, for the ratable account of the Lenders, a facility fee at the rate
per annum equal to (a) for each day that the Borrower has Level I Status,
.0800% of the aggregate Commitments on such day, (b) for each day that the
Borrower has Level II Status, .0900% of the aggregate Commitments, (c) for
each day that the Borrower has Level III Status, .1250% of the aggregate
Commitments, (d) for each day that the Borrower has Level IV Status, .1250%
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of the aggregate Commitments and (e) for each day that the Borrower has
Level V Status, 0.1750% of the aggregate Commitments. On the first Business
Day following the last day of each fiscal quarter of the Borrower and on the
Termination Date (or, if earlier, on the date upon which both the
Commitments are terminated and the Loans are paid in full), the Borrower
shall pay to the Administrative Agent, for the ratable benefit of the
Lenders, the portion of such facility fee which accrued during the fiscal
quarter most recently ended (or, in the case of the payment due on the
Termination Date, the portion thereof ending on such date). Such facility
fee shall be based upon the aggregate Commitments of the Lenders from time
to time, regardless of the Utilization from time to time thereunder.
. Computation of Interest and Fees. () Interest on all Loans
shall be computed on the basis of the actual number of days elapsed over a
year of 360 days or, on any date when the ABR is determined by reference to
the Prime Rate, a year of 365 or 366 days as appropriate (in each case
including the first day but excluding the last day). Each determination of
an interest rate by the Administrative Agent pursuant to any provision of
this Agreement shall be conclusive and binding on the Borrower and the
Lenders in the absence of manifest error. All fees shall be computed on the
basis of a year composed of twelve 30-day months. At any time and from time
to time upon request of the Borrower, the Administrative Agent shall deliver
to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate applicable to
Revolving Credit Loans pursuant to this Agreement. Each change in the
Applicable Margin applicable to Loans or the Facility Fee as a result of a
change in the Borrower's Status shall become effective on the date upon
which such change in Status occurs.
() If any Reference Lender shall for any reason no longer
have a Commitment, such Reference Lender shall thereupon cease to be a
Reference Lender, and if, as a result thereof, there shall only be one
Reference Lender remaining, the Borrower and the Administrative Agent (after
consultation with the Lenders) shall, by notice to the Lenders, designate
another Lender as a Reference Lender so that there shall at all times be at
least two Reference Lenders.
() Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated
hereby. If any of the Reference Lenders shall be unable or shall otherwise
fail to supply such rates to the Administrative Agent upon its request, the
rate of interest shall, subject to the provisions of subsection 2.12, be
determined on the basis of the quotations of the remaining Reference
Lenders.
. Inability to Determine Interest Rate. If the Eurodollar
Rate cannot be determined by the Administrative Agent in the manner
specified in the definition of the term "Eurodollar Rate" contained in
subsection 1.1 of this Agreement, the Administrative Agent shall give
telecopy or telephonic notice thereof to the Borrower and the Lenders as
soon as practicable thereafter. Until such time as the Eurodollar Rate can
be determined by the Administrative Agent in the manner specified in the
definition of such term contained in said subsection 1.1, no further
Eurodollar Loans shall be continued as such at the end of the then current
Interest Period or (other than any Eurodollar Loans previously requested and
with respect to which the Eurodollar Rate previously was
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determined) shall be made, nor shall the Borrower have the right to convert
ABR Loans to Eurodollar Loans.
. Pro Rata Treatment and Payments. () Each borrowing of
Revolving Credit Loans from the Lenders hereunder, each payment by the
Borrower on account of any facility fee hereunder and (except as provided in
subsection 2.18(c)) any reduction of the Commitments of the Lenders shall be
made pro rata according to the respective Commitment Percentages of the
Lenders. Each payment (including each prepayment) by the Borrower on account
of principal of and interest on the Revolving Credit Loans shall be made pro
rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Lenders. Each payment by the
Borrower on account of principal of and interest on any Borrowing of
Competitive Loans shall be made pro rata among the Lenders participating in
such Borrowing according to the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing.
() All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the relevant Lenders, at the
Agent's office specified in subsection 9.2, in Dollars and in immediately
available funds. Notwithstanding the foregoing, the failure by the Borrower
to make a payment (or prepayment) prior to 12:00 Noon on the due date
thereof shall not constitute a Default or Event of Default if such payment
is made on such due date; provided, however, that any payment (or
prepayment) made after such time on such due date shall be deemed made on
the next Business Day for the purposes of interest and reimbursement
calculations. The Administrative Agent shall distribute such payments to the
relevant Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due
and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediately preceding Business
Day.
() Unless the Administrative Agent shall have been notified
in writing by any Lender prior to the deadline for funding a Borrowing that
such Lender will not make the amount that would constitute its Commitment
Percentage of such Borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making 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 such amount is not made available to the
Administrative Agent by the required time on the borrowing date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount
with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts
owing under this subsection 2.13 shall be conclusive in the absence of
manifest
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error. If such Lender's Commitment Percentage of such Borrowing is not made
available to the Administrative Agent by such Lender within three Business
Days of such borrowing date, the Administrative Agent shall be entitled to
recover such amount with interest thereon at the Federal Funds Effective
Rate, on demand, from the Borrower.
. Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Agreement, such
Lender shall give notice thereof to the Administrative Agent and the
Borrower describing the relevant provisions of such Requirement of Law (and,
if the Borrower shall so request, provide the Borrower with a memorandum or
opinion of counsel of recognized standing (as selected by such Lender) as to
such illegality), following which (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be canceled and (b)
such Lender's Loans then outstanding as Eurodollar Loans (including, without
limitation, such Lender's Eurodollar Competitive Loans in the case of clause
(ii) below), if any, shall be converted automatically to ABR Loans (i) on
the respective last days of the then current Interest Periods with respect
to such Loans or (ii) within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the Borrower
shall pay to such Lender such amounts, if any, as may be required pursuant
to subsection 2.17.
. Increased Costs. () If (i) there shall be any increase in
the cost to any Lender of agreeing to make or making, funding or maintaining
any Loans or (ii) any reduction in any amount receivable in respect thereof,
and such increased cost or reduced amount receivable is due to either:
(x) the introduction of or any change in or in the interpretation of
any law or regulation after the date hereof; or
(y) the compliance with any guideline or request made after the date
hereof from any central bank or other Governmental Authority (whether or not
having the force of law), then (subject to the provisions of subsection
2.18) the Borrower shall from time to time, upon demand by such Lender pay
such Lender additional amounts sufficient to compensate such Lender for such
increased cost or reduced amount receivable.
() If any Lender shall have reasonably determined that (i)
the applicability of any law, rule, regulation or guideline adopted after
the date hereof pursuant to or arising out of the July 1988 paper of the
Basle Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards," or
(ii) the adoption after the date hereof of any other law, rule, regulation
or guideline regarding capital adequacy affecting such Lender, or (iii) any
change arising after the date hereof in the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the interpretation
or administration thereof, or (iv) compliance by such Lender (or any lending
office of such Lender), or any holding company for such Lender which is
subject to any of the capital requirements described
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above, with any request or directive of general application issued after the
date hereof regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's capital or
on the capital of any such holding company as a direct consequence of such
Lender's obligations hereunder to a level below that which such Lender or
any such holding company could have achieved but for such adoption, change
or compliance (taking into consideration such Lender's policies and the
policies of such holding company with respect to capital adequacy) by an
amount deemed by such Lender to be material, then (subject to the provisions
of subsection 2.17) from time to time such Lender may request the Borrower
to pay to such Lender such additional amounts as will compensate such Lender
or any such holding company for any such reduction suffered, net of the
savings (if any) which may be reasonably projected to be associated with
such increased capital requirement. Any certificate as to such amounts which
is delivered pursuant to subsection 2.18(a) shall, in addition to any items
required by subsection 2.18(a), include the calculation of the savings (if
any) which may be reasonably projected to be associated with such increased
capital requirement; provided that in no event shall any Lender be obligated
to pay or refund any amounts to the Borrower on account of such savings.
() In the event that any Governmental Authority shall impose
any Eurocurrency Reserve Requirements which increase the cost to any Lender
of making or maintaining Eurodollar Loans, then (subject to the provisions
of subsection 2.18) the Borrower shall thereafter pay in respect of the
Eurodollar Loans of such Lender a rate of interest based upon the Eurodollar
Reserve Rate (rather than upon the Eurodollar Rate). From and after the
delivery to the Borrower of the certificate required by subsection 2.18(a),
all references contained in this Agreement to the Eurodollar Rate shall be
deemed to be references to the Eurodollar Reserve Rate with respect to each
such affected Lender.
. Taxes. () All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and
franchise taxes or any other tax based upon net income imposed on the
Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement). If any such non-excluded taxes,
levies, imposts, duties, charges, fees deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable
to the Administrative Agent or any Lender hereunder, the amounts so payable
to the Administrative Agent or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent or such Lender (after payment
of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in or pursuant to this
Agreement; provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under
the laws of the United States of America or a state thereof if such
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Lender fails to comply with the requirements of paragraph (b) of this
subsection 2.16. Whenever any Non-Excluded Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender,
as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to
pay any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender
as a result of any such failure. The agreements in this subsection 2.16
shall survive the termination of this Agreement and the payment of all other
amounts payable hereunder.
() Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
() deliver to the Borrower and the Administrative
Agent (A) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as the case may be,
and (B) an Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
() deliver to the Borrower and the Administrative
Agent two further copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
() obtain such extensions of time for filing and
completing such forms or certifications as may reasonably be requested by
the Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change
in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Such Lender shall certify (i) in the
case of a Form 1001 or 4224, that it is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes and (ii) in the case of a Form W-8 or W-9, that it is entitled
to an exemption from United States backup withholding tax. Each Person not
incorporated under the laws of the United States of America or a state
thereof that is an Assignee hereunder pursuant to subsection 9.6 shall, upon
the effectiveness of the related transfer, be required to provide all of the
forms and statements required pursuant to this subsection 2.16.
. Indemnity. Subject to the provisions of subsection 2.18(a),
the Borrower agrees to indemnify each Lender and to hold each Lender
harmless from any loss or reasonable expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of any Loan hereunder after
the Borrower has given a notice requesting the same in
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accordance with the provisions of this Agreement, (b) default by the
Borrower in making any prepayment after the Borrower has given a notice
thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans or Fixed Rate Loans on a day
which is not the last day of an Interest Period with respect thereto. Such
indemnification shall be in an amount equal to the excess, if any, of (i)
the amount of interest which would have accrued on the amount so prepaid, or
not so borrowed, converted or continued, for the period from the date of
such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the
date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding the Applicable Margin included
therein) over (ii) the amount of interest (as determined by such Lender)
which would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. This covenant shall survive the termination of
this Agreement and the payment of all other amounts payable hereunder.
. Notice of Amounts Payable; Relocation of Lending Office;
Mandatory Assignment. () In the event that any Lender becomes aware that any
amounts are or will be owed to it pursuant to subsection 2.14, 2.15, 2.16(a)
or 2.17, then it shall promptly notify the Borrower thereof and, as soon as
possible thereafter, such Lender shall submit to the Borrower a certificate
indicating the amount owing to it and the calculation thereof. The amounts
set forth in such certificate shall be prima facie evidence of the
obligations of the Borrower hereunder; provided, however, that the failure
of the Borrower to pay any amount owing to any Lender pursuant to subsection
2.14, 2.15, 2.16(a) or 2.17 shall not be deemed to constitute a Default or
an Event of Default hereunder to the extent that the Borrower is contesting
in good faith its obligation to pay such amount by ongoing discussions
diligently pursued with such Lender or by appropriate proceedings.
() If a Lender claims any additional amounts payable pursuant
to subsection 2.14, 2.15 or 2.16(a), it shall use its reasonable efforts
(consistent with legal and regulatory restrictions) to avoid the need for
paying such additional amounts, including changing the jurisdiction of its
applicable lending office, provided that the taking of any such action would
not, in the reasonable judgment of the Lender, be disadvantageous to such
Lender.
() In the event that any Lender delivers to the Borrower a
certificate in accordance with subsection 2.18(a) (other than a certificate
as to amounts payable pursuant to subsection 2.17), or the Borrower is
required to pay any additional amounts or other payments in accordance with
subsection 2.14, 2.15 or 2.16(a), the Borrower may, at its own expense and
in its sole discretion, (i) require such Lender to transfer or assign, in
whole or in part, without recourse (in accordance with subsection 9.6), all
or part of its interests, rights and obligations under this Agreement (other
than any outstanding Competitive Loans) to another Person (provided that the
Borrower, with the full cooperation of such Lender, can identify a Person
who is ready, willing and able to be an Assignee with respect to thereto)
which shall assume such assigned obligations (which Assignee may be another
Lender, if such Assignee Lender accepts such assignment) or (ii) during such
time as no Default or Event of Default has occurred and is continuing,
terminate the Commitment of such Lender and prepay all outstanding Loans
(other than Competitive Loans) of such Lender; provided that (x) the
Borrower or the Assignee, as
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the case may be, shall have paid to such Lender in immediately available
funds the principal of and interest accrued to the date of such payment on
the Loans (other than Competitive Loans) made by it hereunder and (subject
to subsection 2.17) all other amounts owed to it hereunder and (y) such
assignment or termination of the Commitment of such Lender and prepayment of
Loans does not conflict with any law, rule or regulation or order of any
court or Governmental Authority.
SECTION . REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Borrower hereby represents
and warrants to the Administrative Agent and each Lender that:
. Financial Condition. The Borrower has heretofore furnished
to each Lender a copy of the audited consolidated financial statements of
the Borrower for the fiscal year ended December 31, 1998 and unaudited
consolidated financial statements of the Borrower for each quarterly period
ended subsequent to December 31, 1998 and on or prior to September 30, 1999.
Such financial statements present fairly the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries as of, and
for the fiscal year and fiscal quarters ended on, such dates in accordance
with GAAP (subject, in the case of such quarterly statements, to normal
year-end audit adjustments). Other than as disclosed in the Borrower's 10-K
dated March 17, 1999 or in the Confidential Information Memorandum, between
December 31, 1998 and the Closing Date, there has been no development or
event which has had a Material Adverse Effect.
. Corporate Existence; Compliance with Law. The Borrower (a)
is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (b) has the corporate power and
authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation and in
good standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification, except to the extent that all failures to be duly qualified
and in good standing could not, in the aggregate, have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
. Corporate Power; Authorization; Enforceable Obligations.
The Borrower has the corporate power and authority, and the legal right, to
make, deliver and perform this Agreement and to borrow hereunder and has
taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and to authorize the execution,
delivery and performance of this Agreement. No consent or authorization of
any Governmental Authority or any other Person is required in connection
with the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of this Agreement. This Agreement has been duly
executed and delivered on behalf of the Borrower. This Agreement constitutes
a legal, valid and binding obligation of the Borrower enforceable against
the Borrower in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency,
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reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
. No Legal Bar; No Default. The execution, delivery and
performance of this Agreement, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or Contractual
Obligation of the Borrower and will not result in, or require, the creation
or imposition of any Lien on any of its properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation, except to the extent
that all such violations and creation or imposition of Liens could not, in
the aggregate, have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
. No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Borrower, threatened by or against the Borrower
or any of its Subsidiaries or against any of its or their respective
properties or revenues as of the Closing Date (a) with respect to this
Agreement or any of the actions contemplated hereby, or (b) which involves a
probable risk of an adverse decision which would materially restrict the
ability of the Borrower to comply with its obligations under this Agreement.
. Federal Regulations. No part of the proceeds of any Loans
will be used for "buying," "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation
U of the Board of Governors of the Federal Reserve System as now and from
time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of such Board of Governors.
. Investment Company Act. The Borrower is not an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
. ERISA. The Borrower is in compliance with all material
provisions of ERISA, except to the extent that all failures to be in
compliance could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
. No Material Misstatements. No report, financial statement
or other written information furnished by or on behalf of such Borrower to
the Administrative Agent or any Lender pursuant to subsection 3.1 or
subsection 5.1(a) contains or will contain any material misstatement of fact
or omits or will omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were, are
or will be made, not misleading, except to the extent that the facts
(whether misstated or omitted) do not result in a Material Adverse Effect.
No report, financial statement or other written information furnished by or
on behalf of the Borrower for inclusion in the Confidential Information
Memorandum contained as of the Closing Date any material misstatement of
fact or omitted to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Any forward-looking information contained in the Confidential
Information Memorandum is based upon good faith judgment believed by
management of the Borrower to be reasonable at the time made, it being
recognized by the Lenders that such information as it relates to future
events is not to be viewed as fact and that actual results
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during the period or periods covered by such information may differ from the
projected results set forth therein by a material amount.
. Environmental Matters. Except with respect to any matters
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
. Subsidiaries. The Subsidiaries listed on Schedule 3.11
constitute all the Subsidiaries of the Borrower on the date hereof which are
"significant subsidiaries" within the meaning of Regulation S-X of the U.S.
Securities and Exchange Commission (other than as set forth in such
schedule).
. Year 2000 Matters. The Borrower uses software and related
computer technologies essential to its operations that use two digits rather
than four to specify the year, which could result in a date recognition
problem with the transition to the year 2000. The Borrower has established a
plan to identify and remediate potential Year 2000 problems in its material
business information systems, infrastructure and production and
manufacturing facilities and has surveyed its suppliers and service
providers for Year 2000 compliance. The Borrower has completed an inventory
of potentially date-sensitive material systems to determine which systems
require remediation and developed remediation plans where necessary. The
Borrower has completed the remediation and testing phase of its Year 2000
plan and has implemented new enterprise software as part of its Year 2000
remediation program. The Borrower does not anticipate that a Material
Adverse Effect will occur as a result of the Year 2000 issue.
. Purpose of Loans. The proceeds of the Loans shall be used
by the Borrower for its general corporate purposes including transactions
with its Subsidiaries.
SECTION . CONDITIONS PRECEDENT
. Conditions to Initial Loans. The agreement of each Lender
to make the initial Loan to be made by it is subject to the satisfaction,
prior to or concurrently with the making of such Loan, of the following
conditions precedent:
() Credit Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered (including, without limitation, by
way of a telecopied signature page) by a duly authorized officer of the
Borrower and each Lender.
() Secretary's Certificate. The Administrative Agent shall have
received a certificate of the Secretary or Assistant Secretary of the
Borrower, in form and substance satisfactory to the Administrative Agent,
which certificate shall (i) certify as to the incumbency and signature of
the officers of the Borrower executing this Agreement (with the President or
a Vice President of the Borrower attesting to the incumbency and signature
of the Secretary or Assistant Secretary providing such certificate), (ii)
have attached to it a true, complete and correct copy of each of the
certificate of incorporation
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and by-laws of the Borrower or a statement that there have been no changes
since those previously delivered in connection with the Original Closing
Date, (iii) have attached to it a true and correct copy of the resolutions
of the Board of Directors of the Borrower or a duly authorized committee
thereof or a duly authorized officer thereof, which resolutions shall
authorize the execution, delivery and performance of this Agreement and the
borrowings by the Borrower hereunder and (iv) certify that, as of the date
of such certificate (which shall not be earlier than the date hereof), none
of such certificate of incorporation, by-laws or resolutions shall have been
amended, supplemented, modified, revoked or rescinded.
() [RESERVED].
() Legal Opinions. The Administrative Agent shall have received,
(i) the executed legal opinion of Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the
Borrower, substantially in the form of Exhibit F-1 and (ii) the executed
legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Administrative
Agent, substantially in the form of Exhibit F-2. The Borrower hereby
instructs the counsel referenced in clause (i) to deliver its opinion for
the benefit of the Administrative Agent and each of the Lenders.
() No Material Adverse Effect. Other than as disclosed in the
Borrower's 10-K dated March 17, 1999 or in the Confidential Information
Memorandum, since December 31, 1998, no development or event shall have
occurred that has had or could reasonably be expected to have a Material
Adverse Effect.
The Administrative Agent shall notify the Borrower and each Lender promptly
after the satisfaction of the foregoing conditions.
. Conditions to Each Loan. The agreement of each Lender to
make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan and any Competitive Loan to be made by it) is
subject to the satisfaction of the following conditions:
() Notice of Borrowing. The Administrative Agent shall have
received a notice of borrowing, as required by subsection 2.2 or 2.3, as the
case may be.
() Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to this Agreement shall be
true and correct in all material respects on and as of such date as if made
on and as of such date, except to the extent any such representation and
warranty specifically relates to an earlier date, in which case such
representation and warranty shall have been true and correct as of such
earlier date.
() No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans requested
to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation
and warranty by the Borrower as of the date of such Loan that the conditions
contained in this subsection 4.2 have been satisfied.
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SECTION . AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect, or any amount is owing to any Lender or the Administrative Agent
hereunder, the Borrower shall:
. Financial Statements. Furnish to each Lender:
() as soon as available, but in any event within 110 days after the end
of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related audited consolidated statements of income
and retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year; and
() as soon as available, but in any event not later than 60 days after
the end of each of the first three quarterly periods of each fiscal year of
the Borrower, the unaudited consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and retained earnings and of
cash flows of the Borrower and its consolidated Subsidiaries for such
quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for the previous
year;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and disclosed
therein).
. Certificates; Other Information. Furnish to:
() each Lender, concurrently with the delivery of the financial
statements referred to in subsection 5.1(a), a certificate of Deloitte &
Touche or other independent certified public accountants of nationally
recognized standing stating that, in making the examination necessary
therefor, nothing came to their attention that caused them to believe that
the Borrower was, as at the date at which such financial statements were
made, in breach of subsection 6.1;
() each Lender, concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and 5.1(b), a certificate of a
Financial Officer (i) stating that, to the best of such Officer's knowledge,
(A) such financial statements present fairly the financial condition and
results of operations of the Borrower and its Subsidiaries for the period
referred to therein (subject, in the case of interim statements, to normal
year-end audit adjustments) and (B) during such period the Borrower has
performed all of its covenants and other agreements contained in this
Agreement to be performed by it, and that no Default or Event of Default has
occurred, except as specified in such certificate, and (ii) setting forth in
reasonable detail the calculations required to establish whether the
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Borrower was in compliance with the provisions of subsection 6.1 on the date
of such financial statements;
() each Lender, within 15 days after the same become public, copies of
all financial statements and reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority;
() the Administrative Agent, within ten Business Days after the
occurrence thereof, written notice of any change in Status; provided that
the failure to provide such notice shall not delay or otherwise affect any
change in the Applicable Margin or other amount payable hereunder which is
to occur upon a change in Status pursuant to the terms of this Agreement;
and
() the Administrative Agent, promptly, such additional financial and
other information as the Administrative Agent, on behalf of any Lender, may
from time to time reasonably request and that is reasonably related to such
Lender's credit analysis of the Borrower and which request does not impose
an unreasonable burden on the Borrower to satisfy.
. Notices. Promptly give notice to the Administrative Agent and
each Lender of (a) the occurrence of any Default or Event of Default,
accompanied by a statement of a Financial Officer setting forth details of
the occurrence referred to therein and stating what action the Borrower
proposes to take with respect thereto and (b) so long as the Borrower is not
subject to the periodic reporting requirements of the Securities Exchange
Act of 1934, as amended, (i) the filing or commencement of any action, suit
or proceeding by or before any arbitrator or Governmental Authority against
or affecting the Borrower or any affiliate thereof that could reasonably be
expected to result in a Material Adverse Effect and (ii) any other
development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
. Conduct of Business and Maintenance of Existence. (a) Continue
to engage in its principal line of business as now conducted by it, (b)
preserve, renew and keep in full force and effect its corporate existence
and (c) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its principal
line of business, except, in any such case, as otherwise permitted pursuant
to subsection 6.5 or to the extent that failure to do so would not have a
Material Adverse Effect.
. Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true
and correct entries are made of all dealings and transactions in relation to
its business and activities.
. Environmental Laws. Except as could not in the aggregate
reasonably be expected to result in a Material Adverse Effect:
() comply with all applicable Environmental Laws, and obtain and comply
with and maintain any and all permits, licenses or other approvals required
by applicable Environmental Laws; and
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() conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws.
SECTION . NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect or any amount is owing to any Lender or the Administrative Agent
hereunder:
. Consolidated Leverage Ratio. The Borrower shall not, directly or
indirectly, permit the Consolidated Leverage Ratio to exceed 3.25 to 1.0 at
the end of any fiscal quarter.
. Indebtedness. The Borrower shall not, directly or indirectly,
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness or any guarantee of Indebtedness (other than Indebtedness of
any Subsidiary to the Borrower or to any other Subsidiary and other than
Permitted Receivables Financings), except Indebtedness and guarantees in an
aggregate principal amount at any one time outstanding, which when combined
with (but without duplication) (i) the aggregate outstanding principal
amount of obligations secured by a Lien upon any of the property or revenues
of the Borrower or any of its Subsidiaries at such time and (ii) the
aggregate amount of Sale-Leasebacks consummated since the Original Closing
Date and which are outstanding on the relevant date of determination (other
than Sale-Leasebacks to the extent the proceeds thereof are used to
refinance any Sale-Leaseback which was in existence on the Original Closing
Date), shall not exceed 15% of Consolidated Total Assets as reflected in the
most recent annual audited consolidated financial statements of the Borrower
delivered pursuant to subsection 5.1(a).
. Liens. The Borrower shall not nor shall it permit any Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any
Lien upon any of its property or revenues, whether now owned or hereafter
acquired, except Liens at any one time outstanding with respect to which the
aggregate outstanding principal amount of the obligations secured thereby,
which when combined with (but without duplication) (i) the aggregate
principal amount of Indebtedness and guarantees of Indebtedness of any
Subsidiary outstanding at such time (other than Indebtedness of any
Subsidiary to the Borrower or to any other Subsidiary and other than
Permitted Receivables Financings) and (ii) the aggregate amount of
Sale-Leasebacks consummated since the Original Closing Date and which are
outstanding on the relevant date of determination (other than
Sale-Leasebacks to the extent the proceeds thereof are used to refinance any
Sale-Leaseback which was in existence on the Original Closing Date), shall
not exceed 15% of Consolidated Total Assets as reflected in the most recent
annual audited consolidated financial statements of the Borrower delivered
pursuant to subsection 5.1(a).
. Sale-Leasebacks. The Borrower shall not nor shall it permit any
Subsidiary to, directly or indirectly, enter into any arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of any
property owned by the Borrower or any Subsidiary (except for leases between
the Borrower and a Subsidiary
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or between Subsidiaries), which property has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person
("Sale-Leasebacks"), except for Sale-Leasebacks consummated since the
Original Closing Date and which are outstanding on the relevant date of
determination (other than Sale-Leasebacks to the extent the proceeds thereof
are used to refinance any Sale-Leaseback which was in existence on the
Original Closing Date) in an aggregate amount, which when combined with (but
without duplication) (i) the aggregate outstanding principal amount of
obligations secured by a Lien upon any of the property or revenues of the
Borrower or any of its Subsidiaries at the time of entering into any such
Sale-Leaseback and (ii) the aggregate principal amount of Indebtedness and
guarantees of Indebtedness of any Subsidiary outstanding at such time (other
than Indebtedness of any Subsidiary to the Borrower or to any other
Subsidiary and other than Permitted Receivables Financings), shall not
exceed 15% of Consolidated Total Assets as reflected in the most recent
annual audited consolidated financial statements of the Borrower delivered
pursuant to subsection 5.1(a).
. Merger, Consolidation, etc. The Borrower shall not, directly or
indirectly, merge or consolidate with any other Person, or liquidate, wind
up or dissolve itself (or suffer any liquidation or dissolution) or sell or
convey all or substantially all of its assets to any Person unless, in the
case of mergers and consolidations, (a) the Borrower shall be the continuing
corporation and (b) immediately before and immediately after giving effect
to such merger or consolidation, no Default or Event of Default shall have
occurred and be continuing.
SECTION . EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
() The Borrower shall () fail to pay any principal of any Loan when due
in accordance with the terms hereof or () fail to pay any interest on any
Loan or any other amount which is payable hereunder and (in the case of this
clause (ii) only) such failure shall continue unremedied for more than five
Business Days after written notice thereof has been given to the Borrower by
the Administrative Agent or the Majority Lenders; or
() Any representation or warranty made or deemed made by the Borrower
in Section 3 or any certified statement furnished pursuant to subsection
5.2(b) shall prove to have been incorrect on or as of the date made or
deemed made or certified if the facts or circumstances incorrectly
represented or certified result in a Material Adverse Effect; or
() The Borrower shall default in the observance of the agreement
contained in subsection 5.3(a) or subsection 5.4(a) or (b) or Section 6; or
() The Borrower shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided in
paragraphs (a), (b) and (c) of this Section 7), and such default shall
continue unremedied for a period of 30 days after written notice thereof
shall have been given to the Borrower by the Administrative Agent or the
Majority Lenders; or
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() The Borrower or any Significant Subsidiary shall default in any
payment of $25,000,000 or more of principal of or interest on any
Indebtedness or in the payment of $25,000,000 or more on account of any
guarantee in respect of Indebtedness, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness or
guarantee was created; or
() Any event or condition occurs that results in any Indebtedness or
any guarantee of Indebtedness of the Borrower or any of its Significant
Subsidiaries of an aggregate principal amount of $25,000,000 or more
becoming due in full or payable in full prior to the scheduled maturity of
such Indebtedness or guarantee or that requires the prepayment, repurchase,
redemption or defeasance thereof in full, prior to the scheduled maturity of
such Indebtedness or guarantee (other than pursuant to any voluntary
prepayments, customary due-on-sale clause or any provision requiring
prepayment of such Indebtedness based on excess cash flow, permitted asset
sales or permitted debt or equity issuances, in each case contained in the
terms of such Indebtedness); provided that this clause (f) shall not apply
to secured Indebtedness that becomes due as a result of the voluntary sale
or transfer of the property or assets securing such Indebtedness;
() (i) The Borrower or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all
or any substantial part of its assets, or the Borrower or any of its
Significant Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower or any
of its Significant Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 90 days; or (iii)
there shall be commenced against the Borrower or any of its Significant
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or stayed
or bonded pending appeal within 90 days from the entry thereof; or
() One or more judgments or decrees shall (i) be entered against the
Borrower, (ii) not have been vacated, discharged, satisfied, stayed or
bonded pending appeal within 60 days from the entry thereof and (iii)
involve a liability (not paid or fully covered by insurance) of either (A)
$20,000,000 or more, in the case of any single judgment or decree or (B)
$50,000,000 or more in the aggregate, in the case of all such judgments and
decrees; or
() The Borrower or any of its Significant Subsidiaries shall default in
the performance of any of its obligations under, or otherwise fail to
observe or perform any covenant, condition or agreement contained in, any of
the Material Agreements, to the
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extent the consequences of any such default or failure could reasonably be
expected to result in a Material Adverse Effect;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (g) above with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Majority Lenders,
the Administrative Agent may, or upon the request of the Majority Lenders,
the Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided above in
this Section 7, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION . THE ADMINISTRATIVE AGENT
. Appointment. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent of such Lender under this
Agreement, and each such Lender irrevocably authorizes Chase, as the
Administrative Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent
by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
. Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining
to such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
. Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees or affiliates shall be (i) liable for
any action lawfully taken or omitted to be taken by it or such Person under
or in connection with this Agreement (except for its or such Person's own
gross negligence or willful misconduct) or (ii) responsible in any manner to
any of the Lenders for any recitals, statements, representations or
warranties made by the Borrower or any officer thereof contained in this
Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent
under or in connection with, this
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Agreement or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or for any failure of the
Borrower to perform its obligations hereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement, or to inspect the properties, books or
records of the Borrower.
. Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it in good faith to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to the Borrower), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat the
Lender specified in the Register with respect to any amount owing hereunder
as the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request of
the Majority Lenders (or, to the extent that this Agreement expressly
requires a higher percentage of Lenders, such higher percentage), and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the obligations owing
by the Borrower hereunder.
. Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received written
notice from a Lender or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a "notice
of default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall promptly notify the Borrower (unless
the Borrower shall have delivered such notice to the Administrative Agent)
and then give notice thereof to the Lenders (provided that the failure to
notify the Borrower shall not impair any of the rights of the Administrative
Agent and the Lenders with respect to the events and circumstances specified
in such notice). The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed
by the Majority Lenders; provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
. Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any
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representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Borrower. Except for notices,
reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
. Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do
so), ratably according to their respective Commitment Percentages in effect
on the date on which indemnification is sought under this subsection 8.7
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with their Commitment Percentages immediately prior to such date
of payment in full), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including,
without limitation, at any time following the payment of the amounts owing
hereunder) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
the Agent's gross negligence or willful misconduct. The Administrative Agent
shall have the right to deduct any amount owed to it by any Lender under
this subsection 8.7 from any payment made by it to such Lender hereunder.
The agreements in this subsection 8.7 shall survive the payment of the Loans
and all other amounts payable hereunder.
. Administrative Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not the Administrative Agent hereunder.
With respect to its Loans made or renewed by it, the Administrative Agent
shall have the same rights and powers under this Agreement as any
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Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
. Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 90 days' notice to the Lenders and the
Borrower and following the appointment of a successor Administrative Agent
in accordance with the provisions of this subsection 8.9. If the
Administrative Agent shall resign as Administrative Agent under this
Agreement, then the Majority Lenders shall appoint from among the Lenders
willing to serve as Administrative Agent a successor Administrative Agent
for the Lenders, which successor Administrative Agent shall be approved by
the Borrower (which approval shall not be unreasonably withheld), whereupon
such successor Administrative Agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent"
shall mean such successor Administrative Agent effective upon such
appointment and approval, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former Administrative Agent
or any of the parties to this Agreement or any holders of the obligations
owing hereunder. If no successor agent has accepted appointment as
Administrative Agent by the date that is 90 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Majority Lenders appoint a
successor agent as provided for above. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section
8 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement.
. Syndication Agents and Documentation Agent. Neither of the
Syndication Agents nor the Documentation Agent shall have any duties or
responsibilities hereunder in their capacities as such.
SECTION . MISCELLANEOUS
. Amendments and Waivers. Neither this Agreement, nor any terms
hereof may be amended, supplemented or modified except in accordance with
the provisions of this subsection 9.1. The Majority Lenders may, or, with
the written consent of the Majority Lenders, the Administrative Agent may,
from time to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto for the purpose of adding any provisions
to this Agreement or changing in any manner the rights of the Lenders or of
the Borrower hereunder or (b) waive, on such terms and conditions as the
Majority Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i)
reduce the principal amount of any Loan, or reduce the stated rate of any
interest or fee payable hereunder, or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender
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directly affected thereby, or (ii) amend, modify or waive any provision of
this subsection 9.1 or reduce the percentage specified in the definition of
Majority Lenders, or consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement, in each case
without the written consent of all the Lenders, or (iii) amend, modify or
waive any provision of Section 8 or any other provision of this Agreement
governing the rights or obligations of the Administrative Agent without the
written consent of the then Administrative Agent. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Borrower, the Lenders, the
Administrative Agent and all future holders of the obligations owing
hereunder. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent
thereon.
. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered by hand, or four days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and
the Administrative Agent, and as set forth in Schedule II in the case of the
other parties hereto, or to such other address as may be hereafter notified
by the respective parties hereto and any future holders of the obligations
owing hereunder:
The Borrower: Delphi Automotive Systems Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative
Agent: The Chase Manhattan Bank
The Loan and Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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provided that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to subsection 2.2, 2.3, 2.4, 2.5 and 2.6 shall
not be effective until received.
. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
. Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans
hereunder.
. Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses reasonably incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification
to, this Agreement and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent,
(b) to pay or reimburse each Lender and the Administrative Agent for all its
reasonable costs and expenses reasonably incurred in connection with the
enforcement of any rights under this Agreement, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent and to the several Lenders (other than those incurred
in connection with the compliance by the relevant Lender with the provisions
of subsection 2.18(a)), and (c) to pay, indemnify, and hold each Lender and
the Administrative Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any
delay by the Borrower in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, reasonable
expenses or disbursements of any kind or nature whatsoever (it being
understood that this shall not include the fees and disbursements of counsel
to any of the Lenders (other than Chase) in connection with (i) their review
of this Agreement prior to the Closing Date or (ii) prior to the occurrence
of a Default or an Event of Default, any amendment or waiver to this
Agreement or any assignment to another Lender pursuant to the terms hereof)
with respect to the execution, delivery, enforcement, performance and
administration of this Agreement (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"); provided that the Borrower
shall have no obligation hereunder to the Administrative Agent or any Lender
with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of the Administrative Agent or any such Lender. The
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agreements in this subsection 9.5 shall survive repayment of the Loans and
all other amounts payable hereunder.
. Successors and Assigns; Participations and Assignments. () This
Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent, all future holders of the obligations
owing hereunder and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
() Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks,
financial institutions or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Commitment of such Lender or
any other interest of such Lender hereunder; provided that such Lender shall
have given prior written notice to the Borrower of the identity of such
Participant. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any obligation owing to it hereunder for all
purposes under this Agreement, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. In no event
shall any Participant under any such participation have any right to approve
any amendment or waiver of any provision of this Agreement, or any consent
to any departure by the Borrower therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on,
the Loans or any fees payable hereunder, or postpone the date of the final
maturity of the Loans, in each case to the extent subject to such
participation. The Borrower hereby agrees that each Participant shall be
entitled to the benefits of subsections 2.15, 2.16 and 2.17 with respect to
its participation in the Commitments and the Loans outstanding from time to
time as if it was a Lender; provided that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
() Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to
any Lender or any affiliate thereof or, with the consent of the Borrower
(which shall not be unreasonably withheld) and the Administrative Agent, to
an additional bank or financial institution (an "Assignee") all or any part
of its rights and obligations under this Agreement pursuant to an Assignment
and Acceptance, substantially in the form of Exhibit E, executed by such
Assignee, such assigning Lender (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided that, unless the Borrower
and the Administrative Agent otherwise consent, any such assignment to an
Assignee which is not a Lender (before giving effect to such assignment) or
an affiliate thereof shall be in a minimum amount of $10,000,000. Upon such
execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x)
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the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of (and
be) a Lender hereunder with a Commitment as set forth therein, and (y) the
assigning Lender thereunder shall, to the extent provided in such Assignment
and Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding anything to the contrary contained herein, any Lender may
sell, transfer, assign or grant participations in all or any part of the
Competitive Loans made by it.
() The Administrative Agent shall maintain at its address referred
to in subsection 9.2 a copy of each Assignment and Acceptance delivered to
it and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register
shall be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for inspection
and copying by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice. The Administrative Agent shall
provide a copy of the Register to the Borrower on a monthly basis.
() Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Borrower and the
Administrative Agent) together with payment by the Lender to the
Administrative Agent of a registration and processing fee of $3,500, the
Administrative Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the assigning Lender, its Assignee and the
Borrower.
() The Borrower authorizes each Lender to disclose to any
prospective Participant, any Participant or any prospective Assignee (each,
a "Transferee") any and all financial information in such Lender's
possession concerning the Borrower and its affiliates which has been
delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to all Lenders by or on behalf of the
Borrower in connection with their respective credit evaluations of the
Borrower and its affiliates prior to becoming a party to this Agreement;
provided that (i) such Transferee has executed and delivered to the Borrower
a written confidentiality agreement substantially in the form of that which
has been executed and delivered by each Lender prior to the date hereof and
(ii) in the case of any information other than that contained in the
Confidential Information Memorandum, the Borrower has been informed of the
identity of such Transferee and has consented to the disclosure of such
information thereto. Nothing contained in this subsection 9.6(f) shall be
deemed to prohibit the delivery to any Transferee of any financial
information which is otherwise publicly available.
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() Nothing herein shall prohibit any Lender from pledging or
assigning all or any portion of its Loans to any Federal Reserve Bank in
accordance with applicable law. In order to facilitate such pledge or
assignment, the Borrower hereby agrees that, upon request of any Lender at
any time and from time to time after the Borrower has made its initial
borrowing hereunder, the Borrower shall provide to such Lender, at the
Borrower's own expense, a promissory note, substantially in the form of
Exhibit G, evidencing the Revolving Credit Loans owing to such Lender.
. Adjustments. If any Lender (a "benefitted Lender") shall at any
time receive any payment of all or part of its Loans, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7(g), or otherwise), such that it has received
aggregate payments or collateral on account of its Loans in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans which are then due
and payable, or interest thereon, such benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Loans, or shall provide such other Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest.
. Counterparts. () This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall
be deemed to constitute one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the Borrower
and the Administrative Agent.
(b) By its signature hereto, each Lender hereby agrees that this
Agreement shall become effective immediately upon the execution and delivery
on January 3, 2000 by the Borrower and the Administrative Agent of this
Agreement. In the event that this Agreement has not been duly executed and
delivered by each Person listed on the signature pages hereto (other than
the Borrower and the Administrative Agent, with respect to which the
execution and delivery of this Agreement shall be a condition precedent to
its effectiveness) on or before the date upon which this Agreement becomes
effective in accordance with the immediately preceding sentence, this
Agreement shall nevertheless become effective with respect to those Persons
who have executed and delivered it on or before such effective date and
those Persons who have not executed and delivered it (such Persons, the
"Non-Executing Banks") shall be deemed not to be Lenders hereunder.
(c) On the date of effectiveness of this Agreement, the Borrower
may (after consultation with the Administrative Agent) designate one or more
Lenders (the "Designated Lenders") to assume the Commitments which would
have been held by the Non-Executing Banks and, if the Designated Lenders
agree to assume such Commitments, (i) Schedules I and II shall be deemed to
be amended to reflect such increase in the respective Commitment of each
Designated Lender and the omission of
43
43
each Non-Executing Bank as a Lender hereunder and (ii) the respective
Commitment of each Designated Lender shall be deemed to be such increased
amount for all purposes hereunder.
(d) Notwithstanding anything to the contrary contained herein, (i)
the Commitment of a Lender shall not be increased (without the prior written
consent of such Lender) as a result of the failure of any other Person to
execute and deliver this Agreement or otherwise and (ii) in no event shall
the aggregate Commitments of all Lenders exceed $1,500,000,000.
. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
. Confidentiality. Each of the Administrative Agent, the Issuing
Lender and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a)
to its and its affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent required by any regulatory
authority, (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this subsection, to any Assignee of or
Participant in, or any prospective Assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this subsection or (ii)
becomes available to the Administrative Agent, the Issuing Lender or any
Lender on a nonconfidential basis from a source other than the Borrower. For
the purposes of this Section, "Information" means all information received
from the Borrower relating to the Borrower or its business, other than any
such information that is available to the Administrative Agent, the Issuing
Lender or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the
Borrower after the date hereof, such information is clearly identified at
the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this subsection shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
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44
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
DELPHI AUTOMOTIVE SYSTEMS
CORPORATION
By:
---------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By:
---------------------
Name:
Title:
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Syndication Agent
and as a Lender
By:
---------------------
Name:
Title:
CITIBANK, N.A., as Syndication Agent
and as a Lender
By:
---------------------
Name:
Title:
DEUTSCHE BANK AG
NEW YORK BRANCH, as Syndication
Agent
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH, as Lender
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
BARCLAYS BANK PLC, as Syndication
Agent and Lender
By:
---------------------
Name:
Title:
BANQUE NATIONALE DE PARIS, as
Syndication Agent and Lender
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By:
---------------------
Name:
Title:
BANCA COMMERCIALE ITALIANA - NEW
YORK BRANCH
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
BANCA DI ROMA
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
BANKBOSTON, N.A.
By:
---------------------
Name:
Title:
BANK OF MONTREAL
By:
---------------------
Name:
Title:
THE BANK OF NEW YORK
By:
---------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
---------------------
Name:
Title:
BANK OF TOKYO - MITSUIBISHI TRUST
COMPANY
By:
---------------------
Name:
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE
CAYMAN ISLANDS BRANCH
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
(NEW YORK BRANCH)
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
(▇▇▇▇▇ ▇▇▇▇ OFFICE)
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
COMERICA BANK
By:
---------------------
Name:
Title:
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
CREDIT LYONNAIS, CHICAGO BRANCH
By:
---------------------
Name:
Title:
DAI ICHI KANGYO BANK LTD.
By:
---------------------
Name:
Title:
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
BANK ONE, NA (ILLINOIS)
By:
---------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
---------------------
Name:
Title:
FORTIS (USA) FINANCE LLC
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
BAYERISCHE HYPO- UND VEREINSBANK AG
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
---------------------
Name:
Title:
KBC BANK N.B.
By:
---------------------
Name:
Title:
By:
---------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By:
---------------------
Name:
Title:
HSBC BANK USA
By:
---------------------
Name:
Title:
HSBC BANK PLC
By:
---------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
NEW YORK BRANCH
By:
---------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
NASSAU BRANCH
By:
---------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
---------------------
Name:
Title:
SANPAOLO IMI
By:
---------------------
Name:
Title:
THE SANWA BANK, LTD
NEW YORK BRANCH
By:
---------------------
Name:
Title:
SOCIETE GENERALE
By:
---------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
---------------------
Name:
Title:
WESTPAC BANKING CORPORATION
By:
---------------------
Name:
Title:
45
$1,500,000,000
AMENDED AND RESTATED
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
among
DELPHI AUTOMOTIVE SYSTEMS CORPORATION,
The Several Lenders
from Time to Time Parties Hereto
BANK OF AMERICA, NATIONAL ASSOCIATION, CITIBANK, N.A.,
DEUTSCHE BANK AG NEW YORK BRANCH,
BARCLAYS BANK PLC and BANQUE NATIONALE DE PARIS,
as Syndication Agents
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of January 3, 2000
---------------------------------------
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
46
Page
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 12
SECTION 2. AMOUNT AND TERMS OF THE FACILITIES 13
2.1 Revolving Credit Commitments 13
2.2 Procedure for Revolving Credit Borrowing 13
2.3 Competitive Borrowings 14
2.4 Termination or Reduction of Commitments 17
2.5 Prepayments 17
2.6 Conversion and Continuation Options 17
2.7 Minimum Amounts of Eurodollar Borrowings 18
2.8 Repayment of Loans; Evidence of Debt 18
2.9 Interest Rates and Payment Dates 19
2.10 Facility Fee 20
2.11 Computation of Interest and Fees 20
2.12 Inability to Determine Interest Rate 21
2.13 Pro Rata Treatment and Payments 21
2.14 Illegality 22
2.15 Increased Costs 23
2.16 Taxes 24
2.17 Indemnity 25
2.18 Notice of Amounts Payable; Relocation of Lending Office; 26
Mandatory Assignment
SECTION 3. REPRESENTATIONS AND WARRANTIES 27
3.1 Financial Condition 27
3.2 Corporate Existence; Compliance with Law 27
3.3 Corporate Power; Authorization; Enforceable Obligations 27
3.4 No Legal Bar; No Default 28
3.5 No Material Litigation 28
3.6 Federal Regulations 28
3.7 Investment Company Act 28
3.8 ERISA 28
3.9 No Material Misstatements 28
3.10 Environmental Matters 29
3.11 Subsidiaries 29
3.12 Year 2000 Matters 29
3.13 Purpose of Loans 29
SECTION 4. CONDITIONS PRECEDENT 29
4.1 Conditions to Initial Loans 29
4.2 Conditions to Each Loan 30
SECTION 5. AFFIRMATIVE COVENANTS 31
5.1 Financial Statements 31
5.2 Certificates; Other Information 31
47
Page
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5.3 Notices 32
5.4 Conduct of Business and Maintenance of Existence 33
5.5 Books and Records 33
5.6 Environmental Laws 33
SECTION 6. NEGATIVE COVENANTS 33
6.1 Consolidated Leverage Ratio 33
6.2 Indebtedness 33
6.3 Liens 34
6.4 Sale-Leasebacks 34
6.5 Merger, Consolidation, etc. 34
SECTION 7. EVENTS OF DEFAULT 34
SECTION 8. THE ADMINISTRATIVE AGENT 37
8.1 Appointment 37
8.2 Delegation of Duties 37
8.3 Exculpatory Provisions 37
8.4 Reliance by Administrative Agent 37
8.5 Notice of Default 38
8.6 Non-Reliance on Administrative Agent and Other Lenders 38
8.7 Indemnification 39
8.8 Administrative Agent in Its Individual Capacity 39
8.9 Successor Administrative Agent 39
8.10 Syndication Agents and Documentation Agent 40
SECTION 9. MISCELLANEOUS 40
9.1 Amendments and Waivers 40
9.2 Notices 41
9.3 No Waiver; Cumulative Remedies 41
9.4 Survival of Representations and Warranties 42
9.5 Payment of Expenses and Taxes 42
9.6 Successors and Assigns; Participations and Assignments 42
9.7 Adjustments 45
9.8 Counterparts 45
9.9 Severability 46
9.10 GOVERNING LAW 46
9.11 Confidentiality 46
48
Page
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SCHEDULES
I Commitments; Competitive Bid Lenders
II Addresses for Notices
III Material Agreements
3.11 Subsidiaries
EXHIBITS
Competitive Bid Request
Invitation for Competitive Bids
Competitive Bid
Competitive Bid Accept/Reject Letter
Assignment and Acceptance
-1 Opinion of Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Borrower
F-2 Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Promissory Note