EXECUTION COPY
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U.S. $900,000,000
AMENDED AND RESTATED
FIVE YEAR CREDIT AGREEMENT
Dated as of August 13, 2004
Among
BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
CITICORP USA, INC.
as Administrative Agent
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
as Syndication Agent
and
CITIGROUP GLOBAL MARKETS INC.
and
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
as Joint Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.................................... 1
SECTION 1.02. Computation of Time Periods.............................. 13
SECTION 1.03. Accounting Terms......................................... 13
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances........................................... 13
SECTION 2.02. Making the A Advances.................................... 14
SECTION 2.03. The B Advances........................................... 15
SECTION 2.04. Certain Fees............................................. 18
SECTION 2.05. Reduction and Extensions of the Commitments.............. 19
SECTION 2.06. Repayment of A Advances.................................. 20
SECTION 2.07. Interest................................................. 20
SECTION 2.08. Additional Interest on Eurodollar Rate Advances.......... 21
SECTION 2.09. Interest Rate Determinations; Changes in Rating
Systems............................................... 21
SECTION 2.10. Voluntary Conversion and Continuation of A Advances...... 22
SECTION 2.11. Prepayments of A Advances................................ 23
SECTION 2.12. Increased Costs.......................................... 24
SECTION 2.13. Illegality............................................... 25
SECTION 2.14. Payments and Computations................................ 25
SECTION 2.15. Taxes.................................................... 26
SECTION 2.16. Sharing of Payments, Etc................................. 28
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Effectiveness of this
Agreement............................................. 29
SECTION 3.02. Conditions Precedent to Each A Borrowing................. 30
SECTION 3.03. Conditions Precedent to Each B Borrowing................. 30
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower........... 31
(i)
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.................................... 33
SECTION 5.02. Negative Covenants....................................... 35
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default........................................ 37
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action................................. 38
SECTION 7.02. Administrative Agent's Reliance, Etc..................... 39
SECTION 7.03. CUSA and Affiliates...................................... 39
SECTION 7.04. Lender Credit Decision................................... 39
SECTION 7.05. Indemnification.......................................... 40
SECTION 7.06. Successor Administrative Agent........................... 40
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.......................................... 41
SECTION 8.02. Notices, Etc............................................. 41
SECTION 8.03. No Waiver; Remedies...................................... 43
SECTION 8.04. Costs, Expenses and Indemnification...................... 43
SECTION 8.05. Right of Set-off......................................... 44
SECTION 8.06. Binding Effect........................................... 44
SECTION 8.07. Assignments, Designations and Participations............. 45
SECTION 8.08. Governing Law; Submission to Jurisdiction................ 48
SECTION 8.09. Severability............................................. 49
SECTION 8.10. Execution in Counterparts................................ 49
SECTION 8.11. Survival................................................. 49
SECTION 8.12. Substitution of Lender................................... 49
SECTION 8.13. Confidentiality.......................................... 50
SECTION 8.14. No Fiduciary Relationship................................ 50
SECTION 8.15. Waiver of Jury Trial..................................... 51
(ii)
EXHIBITS
Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Form of Notice of A Borrowing
Exhibit B-2 - Form of Notice of B Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of General
Counsel of the Borrower
Exhibit F - Form of Opinion of Special New York
Counsel to the Administrative Agent
(iii)
AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT dated as of August 13,
2004 among BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY, a New Jersey corporation (the
"Borrower"), the banks (the "Banks") listed on the signature pages hereof, BANK
OF TOKYO-MITSUBISHI TRUST COMPANY, as syndication agent, and CITICORP USA, INC.
("CUSA") as administrative agent (in such capacity, the "Administrative Agent")
for the Lenders hereunder.
PRELIMINARY STATEMENTS:
(1) The Borrower is party to a Five Year Credit Agreement dated as of
August 17, 2001 (as amended, supplemented or otherwise modified from time to
time to (but not including) the date of this Amended and Restated Five Year
Credit Agreement (this "Agreement"), the "Existing Credit Agreement") with the
banks, financial institutions and other institutional lenders party thereto and
Citibank, N.A., as Administrative Agent for the lenders.
(2) The parties to this Agreement desire to amend the Existing Credit
Agreement as set forth herein and to restate the Existing Credit Agreement in
its entirety as set forth below.
(3) The Borrower has requested that the Banks make loans to it in an
aggregate principal amount not exceeding $900,000,000 at any one time
outstanding to support the Borrower's commercial paper program and for other
general corporate purposes, and the Banks are prepared to make such loans upon
the terms and conditions hereof. Accordingly, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Advance" means an advance by a Lender to the Borrower as part of an
A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of A Advance.
"A Borrowing" means (a) a borrowing consisting of simultaneous A
Advances of the same Type having the same Interest Period and (b) other
than for purposes of Sections 2.02 and 3.02, (i) the simultaneous
Conversion of A Advances of one Type to A Advances of the other Type
(having, in the case of Conversions into Eurodollar Rate Advances, the same
Interest Period) and (ii) the simultaneous Continuation of Eurodollar Rate
Advances as Eurodollar Rate Advances having the same Interest Period.
"A Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate
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indebtedness of the Borrower to such Lender resulting from the A Advances
made by such Lender.
"Advance" means an A Advance or a B Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
voting capital stock of such Person or to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of such voting capital stock, by contract or otherwise.
"Applicable Facility Fee Rate" for any Rating Level Period means the
rate set forth below opposite the reference to such Rating Level Period:
Rating Level Applicable Facility
Period Fee Rate (% p.a.)
-------------- -------------------
Level 1 Period 0.0700%
▇▇▇▇▇ ▇ Period 0.0800%
▇▇▇▇▇ ▇ Period 0.0900%
▇▇▇▇▇ ▇ Period 0.1000%
▇▇▇▇▇ ▇ Period 0.1250%
Level 6 Period 0.1750%
Each change in the Applicable Facility Fee Rate resulting from a Rating
Level Change shall be effective on the effective date of such Rating Level
Change.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a B Advance, the office of such Lender notified
by such Lender to the Administrative Agent as its Applicable Lending Office
with respect to such B Advance.
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"Applicable Margin" for any A Advance for any Rating Level Period
means the rate for the respective Type of A Advance set forth below
opposite the reference to such Rating Level Period:
Applicable Margin (% p.a.)
--------------------------
Rating Level Base Rate Eurodollar
Period Advances Rate Advances
-------------- --------- --------------
Level 1 Period 0.0000% 0.1800%
Level 2 Period 0.0000% 0.2200%
Level 3 Period 0.0000% 0.2600%
Level 4 Period 0.0000% 0.3500%
Level 5 Period 0.0000% 0.3750%
▇▇▇▇▇ ▇ Period 0.0000% 0.5750%
Each change in the Applicable Margin resulting from a Rating Level Change
shall be effective (including with respect to each A Advance then
outstanding) on the effective date of such Rating Level Change.
"Applicable Utilization Fee Rate" for any Rating Level Period means
the rate set forth below opposite the reference to such Rating Level
Period:
Rating Level Applicable Utilization
Period Fee Rate (% p.a.)
-------------- ----------------------
Level 1 Period 0.0500%
▇▇▇▇▇ ▇ Period 0.0750%
▇▇▇▇▇ ▇ Period 0.1000%
▇▇▇▇▇ ▇ Period 0.1000%
▇▇▇▇▇ ▇ Period 0.1250%
Level 6 Period 0.1250%
Each change in the Applicable Utilization Fee Rate resulting from a Rating Level
Change shall be effective on the effective date of such Rating Level Change.
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"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"B Advance" means an advance by a Lender to the Borrower as part of a
B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as part
of such borrowing has been accepted by the Borrower under the auction
bidding procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from a B Advance
made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means, for any period, a fluctuating interest rate per
annum in effect from time to time which rate per annum shall at all times
be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York from time to time as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate for
such period.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.07(a)(i) or 2.07(b)(i)(x).
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advance, on which dealings are carried on in
the London interbank market.
"Change in Control" means any of the following events:
(a) the Borrower is merged, consolidated or reorganized into or
with another corporation or other Person, and as a result of such merger,
consolidation or reorganization less than a majority of the combined voting
power of the then outstanding securities of the corporation or other Person
that is the survivor of such merger, consolidation or reorganization
immediately after such transaction is held in the aggregate by the holders
of Voting Stock immediately prior to such transaction; or
(b) the Borrower sells all or substantially all of its assets to
any other corporation or other Person, and less than a majority of the
combined voting power of the
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then outstanding securities of such corporation or other Person immediately
after such transaction is held in the aggregate by the holders of Voting
Stock immediately prior to such sale; or
(c) any "person" or "group" (as such terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable,
except that for purposes of this paragraph (c) such person or group shall
be deemed to have "beneficial ownership" of all shares that such person or
group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time) is or becomes the
"beneficial owner" (as such term is used in Rule 13d-3 promulgated pursuant
to the Exchange Act), directly or indirectly, of more than 50% of the
aggregate voting power of all Voting Stock of the Borrower; or
(d) during any period of 25 consecutive calendar months, a
majority of the Board of Directors of the Borrower shall no longer be
composed of individuals (i) who were members of said Board on the first day
of such period, (ii) whose election or nomination to said Board was
approved by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of said Board or
(iii) whose election or nomination to said Board was approved by
individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of said Board.
"Citibank" means Citibank, N.A.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" has the meaning specified in Section 2.01.
"Commitment Termination Date" means August 13, 2009 or, if the
Commitment Termination Date is extended pursuant to Section 2.05(b), the
date to which such Commitment Termination Date is extended, provided in
each case that if such date is not a Business Day, then the Commitment
Termination Date shall be the immediately preceding Business Day.
"Consolidated Subsidiary" means, at any date, any Subsidiary of the
Borrower or other entity the accounts of which would be consolidated with
those of the Borrower in its consolidated financial statements if such
statements were prepared as of such date.
"Continuation", "Continue" and "Continued" each refers to a
continuation of Eurodollar Rate Advances from one Interest Period to the
next Interest Period pursuant to Section 2.10.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.09 or 2.10.
"Debt" means (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred
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purchase price of property or services, (d) obligations as lessee under
leases which shall have been or should be, in accordance with GAAP,
recorded as capital leases, and (e) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (a) through (d) above; provided that neither trade
accounts payable arising in the ordinary course of business nor obligations
in respect of insurance policies or performance or surety bonds which are
not themselves guarantees of Debt (nor drafts, acceptances or similar
instruments evidencing the same nor obligations in respect of letters of
credit supporting the payment of the same) shall constitute Debt.
"Default" means an event that, with notice or lapse of time or both,
would become an Event of Default.
"Designated Bidder" means (a) an Eligible Assignee or (b) a special
purpose corporation which is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and
that issues (or the parent of which issues) commercial paper rated at least
P-1 by Moody's or A-1 by Standard & Poor's (or a comparable rating from a
successor of either of them), that, in either case, (i) is organized under
the laws of the United States or any State thereof, (ii) shall have become
a party hereto pursuant to Section 8.07(d), (e) and (f), and (iii) is not
otherwise a Lender.
"Designation Agreement" means a designation agreement entered into by
a Lender (other than a Designated Bidder) and a Designated Bidder, and
accepted by the Administrative Agent, in substantially the form of Exhibit
D hereto.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" in the
Administrative Questionnaire of such Bank or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the Borrower
and the Administrative Agent.
"EBITDA" means, for any period, the sum (without duplication), for the
Borrower and its Consolidated Subsidiaries (on a consolidated basis), of
(a) net income for such period plus (b) to the extent deducted in
determining net income for such period, the sum of (i) depreciation and
amortization for such period, (ii) Interest Expense for such period and
(iii) taxes for such period.
"Effective Date" means the earliest date as of which the conditions
precedent to effectiveness set forth in Section 3.01 shall have been
satisfied or waived.
"Eligible Assignee" means:
(a) a commercial bank organized under the laws of the United States,
or any State thereof, and having total assets in excess of $1,000,000,000;
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(b) a savings and loan association or savings bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $500,000,000;
(c) a commercial bank organized under the laws of any other country
which is a member of the OECD or has concluded special lending arrangements
with the International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a political subdivision
of any such country, and having total assets in excess of $1,000,000,000,
provided that such bank is acting through a branch or agency located in the
United States;
(d) the central bank of any country which is a member of the OECD;
(e) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership or other entity)
which is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business, and having total assets in
excess of $150,000,000;
(f) a Lender; and
(g) an Affiliate of a Lender;
provided that neither the Borrower nor any Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Environmental Laws" means any and all present and future Federal,
state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the
regulation or protection of human health, safety or the environment or to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes into the
indoor or outdoor environment, including, without limitation, ambient air,
soil, surface water, ground water, wetlands, land or subsurface strata, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any corporation or trade or business that is a
member of any group of organizations (a) described in Section 414(b) or (c)
of the Code of which the Borrower is a member and (b) solely for purposes
of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA
and Section 412(n) of the Code, described in Section 414(m) or (o) of the
Code of which the Borrower is a member.
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"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" in the
Administrative Questionnaire of such Lender or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance, an interest rate per annum equal to the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits in
U.S. dollars are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advance comprising part of the related A Borrowing and for
a period equal to such Interest Period. The Eurodollar Rate for any
Interest Period for each Eurodollar Rate Advance comprising part of such
related A Borrowing shall be determined by the Administrative Agent on the
basis of applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before the first day of
such Interest Period, subject, however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means an A Advance which bears interest as
provided in Section 2.07(a)(ii) or 2.07(b)(i)(y).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
Period for any Eurodollar Rate Advance means the effective rate (expressed
as a percentage) at which reserve requirements (including, without
limitation, emergency, supplemental and other marginal reserve
requirements) are imposed on such Lender during such Interest Period (or if
more than one such percentage shall be so applicable, the daily average of
such percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from time
to time by the Board of Governors of the Federal Reserve System (or any
successor) with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Excluded Period" means, with respect to any additional amount payable
under Section 2.12, the period ending 120 days prior to the applicable
Lender's delivery of a certificate referenced in Section 2.12(a) or
2.12(b), as applicable, with respect to such additional amount.
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"Existing Commitment Termination Date" has the meaning specified in
Section 2.05(b).
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Facility Fee" has the meaning specified in Section 2.04(a).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to 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 for such day (or, if such day is not a Business Day, for the next
preceding 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 on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"GAAP" has the meaning specified in Section 1.03.
"Interest Coverage Ratio" means, at any date of determination thereof,
the ratio of (a) EBITDA for the period of four consecutive fiscal quarters
most recently ended on or prior to such date to (b) Interest Expense for
such period.
"Interest Expense" means, for any period, the sum (determined without
duplication) of the aggregate amount of cash interest accruing during such
period on the Debt of the Borrower and its Consolidated Subsidiaries (on a
consolidated basis), including, without limitation, the interest portion of
payments under capital lease obligations and any capitalized interest.
"Interest Period" means, with respect to any Eurodollar Rate Advance,
the period beginning on the date such Eurodollar Rate Advance is made or
Continued, or Converted from a Base Rate Advance, and ending on the last
day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, two, three
or six months, and subject to clause (iii) of this definition, nine or
twelve months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) each Interest Period that begins on the last Business Day of
a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end
on the last Business Day of the appropriate subsequent calendar month;
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(iii) the Borrower shall not be entitled to select an Interest
Period having duration of nine or twelve months unless, by 2:00 P.M. (New
York City time) on the third Business Day prior to the first day of such
Interest Period, each Lender notifies the Administrative Agent that such
Lender will be providing funding for such Eurodollar Rate Advance with such
Interest Period (the failure of any Lender to so respond by such time being
deemed for all purposes of this Agreement as an objection by such Lender to
the requested duration of such Interest Period); provided that, if any or
all of the Lenders object to the requested duration of such Interest
Period, the duration of the Interest Period for such Eurodollar Rate
Advance shall be one, two, three or six months, as specified by the
Borrower as the desired alternative to an Interest Period of nine months or
twelve months; and
(iv) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day.
"Lenders" means the Banks listed on the signature pages hereof, each
Person that shall become a party hereto pursuant to Section 2.05, Section
8.07(a), (b) and (c) or Section 8.12, and, except when used in reference to
an A Advance, an A Borrowing, an A Note, a Commitment or a related term,
each Designated Bidder.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Majority Lenders" means at any time Lenders holding at least 51% of
the then aggregate unpaid principal amount of the A Advances held by
Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 51% of the Commitments.
"Material Adverse Effect" means a material adverse effect on (i) the
business, condition (financial or otherwise) or results of operations of
the Borrower and its Subsidiaries, taken as a whole, or (ii) the legality,
validity or enforceability of this Agreement or any Note.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the
Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Non-Extending Lender" has the meaning specified in Section 2.05(b).
"Note" means an A Note or a B Note.
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"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
"Notice of B Borrowing" has the meaning specified in Section 2.03(a).
"OECD" means the Organization for Economic Cooperation and
Development.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means an employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and that is covered by
Title IV of ERISA, other than a Multiemployer Plan.
"Rated Securities" means, at any time, the long-term senior unsecured,
unguaranteed debt securities of the Borrower outstanding at such time.
"Rating Level Change" means a change in the rating of the Rated
Securities by either or both of Moody's or Standard & Poor's (other than as
a result of a change in the rating system of such rating agency) that
results in the change from one Rating Level Period to another, which Rating
Level Change shall be effective on the date on which the relevant change in
the rating of the Rated Securities is first announced by Moody's or
Standard & Poor's, as the case may be.
"Rating Level Period" means, as of any period, the level set forth
below as then in effect, as determined in accordance with the following
provisions of this definition:
"Level 1 Period" means a period during which the Rated Securities
are rated better than or equal to Aa2 by Moody's or better than or
equal to AA by Standard & Poor's.
"Level 2 Period" means a period that is not a Level 1 Period
during which the Rated Securities are rated better than or equal to A1
by Moody's or better than or equal to A+ by Standard & Poor's.
"Level 3 Period" means a period that is not a Level 1 Period or a
Level 2 Period during which the Rated Securities are rated better than
or equal to A2 by Moody's or better than or equal to A by Standard &
Poor's.
"Level 4 Period" means a period that is not a Level 1 Period, a
Level 2 Period or a Level 3 Period during which the Rated Securities
are rated better than or equal to A3 by Moody's or better than or
equal to A- by Standard & Poor's.
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"Level 5 Period" means a period that is not a Level 1 Period, a
Level 2 Period, a Level 3 Period or a Level 4 Period during which the
Rated Securities are rated better than or equal to Baa1 by Moody's or
better than or equal to BBB+ by Standard & Poor's.
"Level 6 Period" means each period other than a Level 1 Period, a
Level 2 Period, a Level 3 Period, a Level 4 Period or a Level 5
Period, and shall include each period during which both Moody's and
Standard & Poor's shall not have in effect a rating for the Rated
Securities (other than because either such rating agency shall no
longer be in the business of rating corporate debt obligations).
For purposes of the forgoing, (a) if only one of Moody's and Standard
& Poor's shall have in effect a rating for the Rated Securities, the Rating
Level Period shall be determined by reference to the available rating and
(b) if the Rated Securities are rated by Moody's and Standard & Poor's with
ratings that would otherwise fall within different Rating Level Periods,
the applicable Rating Level Period shall be determined by the rating that
results in the higher Rating Level Period except that if the lower of such
ratings would result in a Rating Level Period that is more that one level
below the higher of such Rating Level Periods, the Rating Level Period
shall be determined by reference to the rating that is one level above the
lower of such ratings.
"Reference Banks" means CUSA and Bank of Tokyo-Mitsubishi Trust
Company.
"Register" has the meaning specified in Section 8.07(g).
"Reportable Event" has the meaning set forth in Title IV of ERISA.
"Standard & Poor's" means Standard & Poor's Ratings Services,
presently a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its
successors.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company or other entity of which at least a
majority of the securities or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions of such corporation,
partnership, limited liability company or other entity (irrespective of
whether or not at the time securities or other ownership interests of any
other class or classes of such corporation, partnership or other entity
shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person
and one or more Subsidiaries of such Person.
"Taxes" has the meaning specified in Section 2.15.
"Termination Date" means the Commitment Termination Date or the
earlier date of termination in whole of the Commitments pursuant to Section
2.05(a) or 6.01.
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"Utilization Fee" has the meaning specified in Section 2.04(b).
"Voting Stock" means, at any time, the outstanding securities of the
Borrower entitled to vote generally in the election of directors of the
Borrower.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles ("GAAP") as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Borrower's independent
public accountants) with the most recent audited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries delivered to the
Lenders; provided that, if the Borrower notifies the Administrative Agent that
the Borrower wishes to amend any defined term or covenant to eliminate the
effect of any change in generally accepted accounting principles on the
operation of such defined term or covenant (or if the Administrative Agent
notifies the Borrower that the Majority Lenders wish to amend such defined term
or covenant for such purpose), then the Borrower's compliance with this
Agreement shall be determined on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such defined term or covenant is amended in a manner satisfactory
to the Borrower and the Majority Lenders.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances.
(a) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make A Advances to the Borrower from time to time on
any Business Day during the period from the date hereof until the Termination
Date in an aggregate amount not to exceed at any time outstanding the amount set
opposite such Lender's name on the signature pages hereof or, if such Lender has
entered into any Assignment and Acceptance, set forth for such Lender in the
Register, as such amount may be reduced pursuant to Section 2.05(a) (such
Lender's "Commitment"), provided that the aggregate amount of the Commitments of
the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the B Advances then outstanding and such deemed use of the
aggregate amount of the Commitments shall be deemed applied to the Lenders
ratably according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a "B Reduction").
(b) Each A Borrowing (i) shall (except as otherwise provided in
Sections 2.09(f) and (g)) be in an aggregate amount not less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and (ii) shall consist of A
Advances of the same Type (and, if such Advances are Eurodollar Rate Advances,
having the same Interest Period) made, Continued or
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Converted on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the Borrower may
from time to time borrow, prepay pursuant to Section 2.11(b) and reborrow under
this Section 2.01.
SECTION 2.02. Making the A Advances.
(a) Each A Borrowing shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed A Borrowing (in the case of an A Borrowing consisting of Eurodollar
Rate Advances) or given not later than 11:00 A.M. (New York City time) on the
Business Day of the proposed A Borrowing (in the case of an A Borrowing
consisting of Base Rate Advances), by the Borrower to the Administrative Agent,
which shall give to each Lender prompt notice thereof by telecopier. Each such
notice of an A Borrowing (a "Notice of A Borrowing") shall be by telecopier, in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such A Borrowing, (ii) Type of A Advances comprising such A
Borrowing, (iii) aggregate amount of such A Borrowing, and (iv) in the case of
an A Borrowing consisting of Eurodollar Rate Advances, initial Interest Period
for each such A Advance. Each Lender shall, before 1:00 P.M. (New York City
time) on the date of such A Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at its address referred to
in Section 8.02, in same day funds, such Lender's ratable portion of such A
Borrowing. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
the Borrower may only select Eurodollar Rate Advances for any A Borrowing in an
aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the
Borrower. In the case of any A Borrowing which the related Notice of A Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill, on or before the date specified in such
Notice of A Borrowing, the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the A Advance to be made
by such Lender as part of such A Borrowing. The Borrower shall pay amounts owing
to any Lender pursuant to this Section 2.02(c) within 30 days after receipt from
such Lender of a certificate setting forth in reasonable detail the calculation
of the amount such Lender is entitled to claim under this Section 2.02(c) (which
certificate shall be conclusive and binding for all purposes, absent manifest
error).
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any A Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such A
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such A Borrowing in
accordance with subsection (a) of this Section 2.02
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and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Administrative Agent, such Lender and the Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to A Advances comprising such A Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's A Advance as part of such A Borrowing for purposes of
this Agreement (and such A Advance shall be deemed to have been made by such
Lender on the date on which such amount is so repaid to the Administrative
Agent).
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. The B Advances.
(a) Each Lender severally agrees that the Borrower may request B
Borrowings under this Section 2.03 from time to time on any Business Day during
the period from the date hereof until the date occurring 30 days prior to the
Termination Date in the manner set forth below; provided that, following the
making of each B Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any B Reduction). The following procedures
shall apply:
(i) The Borrower may request a B Borrowing under this Section 2.03 by
delivering to the Administrative Agent, by telecopier, a notice of a B
Borrowing (a "Notice of B Borrowing"), in substantially the form of Exhibit
B-2 hereto, specifying the date and aggregate amount of the proposed B
Borrowing, the maturity date for repayment of each B Advance to be made as
part of such B Borrowing (which maturity date may not be earlier than the
date occurring 30 days after the date of such B Borrowing or later than the
Termination Date), the interest payment date or dates relating thereto, and
any other terms to be applicable to such B Borrowing, not later than 10:00
A.M. (New York City time):
(A) at least one Business Day prior to the date of the proposed B
Borrowing, if the Borrower shall specify in the Notice of B Borrowing
that the rates of interest to be offered by the Lenders shall be fixed
rates per annum (such Borrowing, a "Fixed Rate B Borrowing") and
(B) at least four Business Days prior to the date of the proposed
B Borrowing, if the Borrower shall instead specify in the Notice of B
Borrowing the
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basis to be used by the Lenders in determining the rates of interest
to be offered by them (such Borrowing, a "Specified Basis B
Borrowing").
Simultaneously with each such request, the Borrower shall pay to the
Administrative Agent, for the Administrative Agent's account, a
non-refundable fee in the amount heretofore agreed between the Borrower and
the Administrative Agent. Promptly following the Administrative Agent's
receipt of such request and the fee referred to in the preceding sentence,
the Administrative Agent shall notify each Lender of such request for a B
Borrowing received by it from the Borrower by sending such Lender a copy of
the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more B Advances to the Borrower as part of
such proposed B Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Administrative Agent (which
shall give prompt notice thereof to the Borrower), before 10:00 A.M. (New
York City time) (A) on the date of such proposed B Borrowing (in the case
of a Fixed Rate B Borrowing) and (B) three Business Days before the date of
such proposed B Borrowing (in the case of a Specified Basis B Borrowing),
of the minimum amount and maximum amount of each B Advance which such
Lender would be willing to make as part of such proposed B Borrowing (which
amounts may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment, if any), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with respect
to such B Advance; provided that if the Administrative Agent in its
capacity as a Lender shall, in its sole discretion, elect to make any such
offer, it shall notify the Borrower of such offer before 9:30 A.M. (New
York City time) on the date on which notice of such election is to be given
to the Administrative Agent by the other Lenders. If any Lender shall elect
not to make such an offer, such Lender shall so notify the Administrative
Agent, before 10:00 A.M. (New York City time) on the date on which notice
of such election is to be given to the Administrative Agent by the other
Lenders, and such Lender shall not be obligated to, and shall not, make any
B Advance as part of such B Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be obligated to
make any B Advance as part of such proposed B Borrowing.
(iii) The Borrower shall, in turn, (A) before 11:00 A.M. (New York
City time) on the date of such proposed B Borrowing (in the case of a Fixed
Rate B Borrowing) and (B) before 1:00 P.M. (New York City time) three
Business Days before the date of such proposed B Borrowing (in the case of
a Specified Basis B Borrowing), either:
(x) cancel such B Borrowing by giving the Administrative Agent
notice to that effect, or
(y) in its sole discretion, (1) accept one or more of the offers
made by any Lender or Lenders pursuant to paragraph (ii) above by
giving notice to the Administrative Agent of the amount of each B
Advance to be made by each Lender as part of such B Borrowing
(provided that (I) the amount of each such B
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Advance shall be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to the Borrower by
the Administrative Agent on behalf of such Lender for such B Advance
pursuant to paragraph (ii) above and (II) such offers, if accepted,
must be accepted in ascending order of the rates of interest specified
by the offering Lenders in their respective notices delivered pursuant
to paragraph (ii) above (in each case beginning with the lowest rate
so offered) and, if offers are made by two or more Lenders with the
same rates of interest for a greater aggregate principal amount than
the amount in respect of which offers are accepted, then the principal
amount of B Advances in respect of which such offers are accepted
shall be allocated by the Borrower among such Lenders as nearly as
possible (in integral multiples of $1,000,000) in proportion to the
aggregate maximum principal amount of such offers by such Lenders),
and (2) reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Administrative Agent notice to that
effect.
(iv) If the Borrower notifies the Administrative Agent that such B
Borrowing is canceled pursuant to paragraph (iii)(x) above, the
Administrative Agent shall give prompt notice thereof to the Lenders and
such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Administrative
Agent shall in turn promptly notify (A) each Lender that has made an offer
as described in paragraph (ii) above, of the date and aggregate amount of
such B Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower, (B)
each Lender that is to make a B Advance as part of such B Borrowing, of the
amount of each B Advance to be made by such Lender as part of such B
Borrowing, and (C) each Lender that is to make a B Advance as part of such
B Borrowing, upon receipt, that the Administrative Agent has received forms
of documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a B Advance as part of such B
Borrowing shall, before 12:00 noon (New York City time) on the date of such
B Borrowing specified in the notice received from the Administrative Agent
pursuant to clause (A) of the preceding sentence or any later time when
such Lender shall have received notice from the Administrative Agent
pursuant to clause (C) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Administrative Agent at its
address referred to in Section 8.02 such Lender's portion of such B
Borrowing, in same day funds. Upon fulfillment of the applicable conditions
set forth in Article III and after receipt by the Administrative Agent of
such funds, the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address. Promptly after
each B Borrowing the Administrative Agent will notify each Lender of the
amount of the B Borrowing, the consequent B Reduction and the dates upon
which such B Reduction commenced and will terminate.
(b) As promptly as practicable after the date of such B Borrowing, the
Borrower shall execute and deliver to the Administrative Agent a B Note payable
to the order of each Lender participating in such Borrowing for each of the B
Advances to be made by such Lender
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as part of such B Borrowing, in a principal amount equal to the principal amount
of the B Advance to be evidenced thereby and otherwise on such terms as were
agreed to for such B Advance in accordance with this Section 2.03. The
indebtedness of the Borrower resulting from each B Advance made to the Borrower
as part of a B Borrowing shall be evidenced by a separate B Note of the Borrower
payable to the order of the Lender making such B Advance.
(c) Each B Borrowing shall be in an aggregate amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, but no B
Borrowing shall be made if, following the making of such B Borrowing, the
Borrower would not be in compliance with the limitation set forth in the proviso
to the first sentence of subsection (a) above.
(d) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
pursuant to subsection (e) below, and reborrow under this Section 2.03, provided
that a B Borrowing shall not be made within three Business Days of the date of
any other B Borrowing.
(e) The Borrower shall repay to the Administrative Agent for the
account of each Lender which has made a B Advance, or each other holder of a B
Note, on the maturity date of each B Advance (such maturity date being that
specified by the Borrower for repayment of such B Advance in the related Notice
of B Borrowing delivered pursuant to subsection (a)(i) above and provided in the
B Note evidencing such B Advance), the then unpaid principal amount of such B
Advance. The Borrower shall have no right to prepay any principal amount of any
B Advance.
(f) The Borrower shall pay interest on the unpaid principal amount of
each B Advance from the date of such B Advance to the date the principal amount
of such B Advance is repaid in full, at the rate of interest for such B Advance
specified by the Lender making such B Advance in its notice with respect thereto
delivered pursuant to subsection (a)(ii) above, payable on the interest payment
date or dates specified by the Borrower for such B Advance in the related Notice
of B Borrowing delivered pursuant to subsection (a)(i) above, as provided in the
B Note evidencing such B Advance.
SECTION 2.04. Certain Fees.
(a) Facility Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender (other than the Designated Bidders) a
facility fee (the "Facility Fee") on the average daily amount (whether used or
unused) of such Lender's Commitment from the date on which the Borrower signs
this Agreement (in the case of each Bank) and from the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender (in the
case of each such Lender) until the Termination Date at a rate per annum equal
to the Applicable Facility Fee Rate as in effect from time to time. Accrued
Facility Fee shall be paid on the last Business Day of each March, June,
September and December and on the Termination Date.
(b) Utilization Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender (other than the Designated Bidders) a
utilization fee (the "Utilization Fee") on the aggregate outstanding principal
amount of such Lender's Advances during any
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period that the aggregate outstanding principal amount of the Advances exceeds
an amount equal to 50% of the aggregate amount of the Commitments, at a rate per
annum equal to the Applicable Utilization Fee Rate. Accrued Utilization Fee
shall be paid on each day on which a payment of interest is due under Section
2.07.
(c) Administrative Agent's Fee. The Borrower acknowledges its
agreement to pay to the Administrative Agent, for the Administrative Agent's own
account, an administrative agency fee at the times and in the amounts heretofore
agreed between the Borrower and the Administrative Agent.
SECTION 2.05. Reduction and Extensions of the Commitments.
(a) Commitment Reductions. The Borrower shall have the right, upon at
least three Business Days' notice to the Administrative Agent, to terminate in
whole or reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that the aggregate amount of the
Commitments of the Lenders shall not be reduced to an amount which is less than
the aggregate principal amount of the Advances then outstanding, and provided
further that each partial reduction shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof. Once
reduced or terminated, the Commitments may not be reinstated.
(b) Commitment Extensions.
(i) The Borrower may, by notice to the Administrative Agent (which
shall promptly notify the Lenders) not more than 45 days and not less than
30 days prior to each anniversary of the Effective Date (each such
anniversary, an "Anniversary Date"), request that the Lenders (other than
the Designated Bidders) extend the Commitment Termination Date for an
additional one-year period from the Commitment Termination Date then in
effect hereunder (the "Existing Commitment Termination Date"). Each such
Lender, acting in its sole discretion, shall, by notice to the Borrower and
the Administrative Agent given no later than the date (herein, the "Consent
Date") that is 25 days prior to such Anniversary Date (or, if such date is
not a Business Day, the next succeeding Business Day), advise the Borrower
and the Administrative Agent whether or not such Lender agrees to such
extension; provided that each Lender that determines not to so extend the
Commitment Termination Date (a "Non-Extending Lender") shall notify the
Administrative Agent (which shall notify the other Lenders) of such fact
promptly after such determination (but in any event no later than the
Consent Date) and any Lender that does not so advise the Borrower on or
before the Consent Date shall be deemed to be a Non-Extending Lender. The
election of any Lender to agree to such extension shall not obligate any
other Lender to so agree. If and only if each of the Lenders has advised
the Borrower and the Administrative Agent of its agreement to extend the
Commitment Termination Date as aforesaid on or prior to the Consent Date,
then the Commitment Termination Date shall be extended automatically,
without any other action by any Person, to the date that is one year after
the Existing Commitment Termination Date. The Administrative Agent will
promptly notify the Borrower and the Lenders of each extension of the
Commitment Termination Date pursuant to this Section 2.05(b).
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SECTION 2.06. Repayment of A Advances. The Borrower hereby promises to
pay to the Administrative Agent for account of each Lender the entire
outstanding principal amount of such Lender's A Advances, and each A Advance
shall mature, on the Termination Date.
SECTION 2.07. Interest.
(a) Ordinary Interest. The Borrower shall pay interest on the unpaid
principal amount of each A Advance made by each Lender, from the date of such A
Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. If such A Advance is a Base Rate Advance, a
rate per annum equal to the Base Rate in effect from time to time plus the
Applicable Margin for Base Rate Advances as in effect from time to time,
payable quarterly in arrears on the last Business Day of each March, June,
September and December and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. If such A Advance is a Eurodollar Rate
Advance, a rate per annum for each Interest Period for such A Advance equal
to the sum of the Eurodollar Rate for such Interest Period plus the
Applicable Margin for Eurodollar Rate Advances as in effect from time to
time, payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on the day which occurs
three months after the first day of such Interest Period, and on the date
such Eurodollar Rate Advance shall be Continued, Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on the unpaid
principal amount of each A Advance and B Advance that is not paid when due
(whether at stated maturity, by acceleration or otherwise), and on the unpaid
amount of any interest, fee or other amount payable hereunder that is not paid
when due, payable on demand, at a rate per annum during the period from the due
date thereof to the date on which such amount is paid in full equal to:
(i) in the case of any amount of principal of such Advance:
(x) in the case of any Base Rate Advance, 2% plus the rate which
would otherwise be applicable to such Advance, and
(y) in the case of any Eurodollar Rate Advance, for the balance
of the then current Interest Period, 2% plus the rate which would
otherwise be applicable to such Advance for such Interest Period and,
thereafter, 2% plus the Base Rate as in effect from time to time, and
(ii) in the case of all other amounts, 2% plus the Base Rate as in
effect from time to time.
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SECTION 2.08. Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or the equivalent), additional interest on
the unpaid principal amount of each Eurodollar Rate Advance of such Lender, from
the date of such Eurodollar Rate Advance until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the Eurodollar Rate for the then-current Interest Period for
such Eurodollar Rate Advance from (ii) the rate obtained by dividing such
Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage of such Lender for such Interest Period, payable on each date on
which interest is payable on such Eurodollar Rate Advance. Any Lender wishing to
require payment of such additional interest shall so notify the Borrower and the
Administrative Agent and shall furnish to the Borrower at least five Business
Days prior to each date on which interest is payable on the Eurodollar Rate
Advances of such Lender a certificate (which certificate shall be conclusive and
binding for all purposes, absent manifest error) setting forth the basis for
such assertion and the amount to which such Lender is then entitled under this
Section (which shall be consistent with such Lender's good faith estimate of the
level at which the related reserves are being maintained by it).
SECTION 2.09. Interest Rate Determinations; Changes in Rating Systems.
(a) Each Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Eurodollar Rate. If any
one or more of the Reference Banks shall not furnish such timely information to
the Administrative Agent for the purpose of determining any such interest rate,
the Administrative Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks (subject to clause
(c) below).
(b) The Administrative Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the Administrative
Agent for the purpose of Section 2.07 and the applicable rate, if any, furnished
by each Reference Bank for the purpose of determining the applicable interest
rate under Section 2.07(a)(ii).
(c) If fewer than two Reference Banks furnish timely information to
the Administrative Agent for determining the Eurodollar Rate for any Interest
Period for any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances for such Interest Period,
(ii) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and
(iii) the obligation of the Lenders to make or Continue, or to Convert
A Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall
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notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and
(ii) the obligation of the Lenders to make or Continue, or to Convert
A Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and such Lenders that the
circumstances causing such suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any A Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such A Advances shall
automatically Convert into Base Rate Advances.
(g) Upon the occurrence and during the continuance of any Event of
Default and upon notice from the Administrative Agent to the Borrower at the
request of the Majority Lenders, (x) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (y) the obligation of the Lenders to make
or Continue, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
(h) If the rating system of either ▇▇▇▇▇'▇ or Standard & Poor's shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Administrative Agent (on
behalf of the Lenders) shall negotiate in good faith to amend the references to
specific ratings in this Agreement to reflect such changed rating system or the
non-availability of ratings from such rating agency (provided that any such
amendment to such specific ratings shall in no event be effective without the
approval of the Majority Lenders).
SECTION 2.10. Voluntary Conversion and Continuation of A Advances.
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(a) Optional Conversion. The Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.09 and 2.13, Convert all
or any portion of the outstanding A Advances of one Type comprising part of the
same A Borrowing into A Advances of the other Type; provided that (i) any
Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an
amount not less than the minimum amount specified in Section 2.02(b) and (ii) in
the case of any such Conversion of a Eurodollar Rate Advance into a Base Rate
Advance on a day other than the last day of an Interest Period therefor, the
Borrower shall reimburse the Lenders in respect thereof pursuant to Section
8.04(c). Each such notice of a Conversion shall, within the restrictions
specified above, specify (x) the date of such Conversion, (y) the A Advances to
be Converted, and (z) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such A Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) Continuations. The Borrower may, on any Business Day, upon notice
given to the Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed Continuation and
subject to the provisions of Sections 2.09 and 2.13, Continue all or any portion
of the outstanding Eurodollar Rate Advances comprising part of the same A
Borrowing for one or more Interest Periods; provided that (i) Eurodollar Rate
Advances so Continued and having the same Interest Period shall be in an amount
not less than the minimum amount specified in Section 2.02(b) and (ii) in the
case of any such Continuation on a day other than the last day of an Interest
Period therefor, the Borrower shall reimburse the Lenders in respect thereof
pursuant to Section 8.04(c). Each such notice of a Continuation shall, within
the restrictions specified above, specify (x) the date of such Continuation, (y)
the Eurodollar Rate Advances to be Continued and (y) the duration of the initial
Interest Period (or Interest Periods) for the Eurodollar Rate Advances subject
to such Continuation. Each notice of Continuation shall be irrevocable and
binding on the Borrower.
SECTION 2.11. Prepayments of A Advances.
(a) The Borrower shall have no right to prepay any principal amount of
any A Advances other than as provided in subsection (b) below.
(b) The Borrower may, upon at least one Business Day's notice to the
Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Advances comprising part of the same A
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount not less
than $10,000,000 or integral multiples of $1,000,000 in excess thereof and (y)
in the case of any such prepayment of a Eurodollar Rate Advance on a day other
than the last day of an Interest Period therefor, the Borrower shall reimburse
the Lenders in respect thereof pursuant to Section 8.04(c).
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SECTION 2.12. Increased Costs.
(a) If, due to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
of (to the extent any such introduction or change occurs after the date hereof)
any law or regulation or (ii) the compliance with any guideline or request of
any central bank or other governmental authority adopted or made after the date
hereof (whether or not having the force of law), there shall be any increase in
the cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, the Borrower shall from time to time, within 30 days
after delivery by such Lender to the Borrower (with a copy to the Administrative
Agent) of a certificate as to the amount of (and specifying in reasonable detail
the basis for) such increased cost, pay (subject to Section 2.12(c)) to the
Administrative Agent for the account of such Lender the amount of the increased
costs set forth in such certificate (which certificate shall be conclusive and
binding for all purposes, absent manifest error); provided that, before making
any such demand, each Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost and would not,
in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.
(b) If any Lender (other than a Designated Bidder) determines that
compliance with any law or regulation enacted or introduced after the date
hereof or any guideline or request of any central bank or other governmental
authority adopted or made after the date hereof (whether or not having the force
of law) affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
within 30 days after delivery by such Lender to the Borrower (with a copy to the
Administrative Agent) of a certificate as to (and specifying in reasonable
detail the basis for) the Additional Amounts (as hereinafter defined) requested
by such Lender, the Borrower shall pay (subject to Section 2.12(c)) to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, the amount specified in such certificate (which
certificate shall be conclusive and binding for all purposes, absent manifest
error). For purposes hereof, the "Additional Amounts" that may be requested by
any Lender under this Section 2.12(b) means such amounts as such Lender shall
reasonably determine to be sufficient to compensate such Lender or any
corporation controlling such Lender for any costs that such Lender reasonably
determines are attributable to the maintenance by such Lender (or such
corporation) of capital in respect of its commitments to lend hereunder (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender (or such corporation) to a
level below that which such Lender (or such corporation) could have achieved but
for the enactment or introduction of such law or regulation or the adoption or
making of such guideline or request).
(c) The Borrower shall not be obligated to pay any additional amounts
arising pursuant to clauses (a) and (b) of this Section 2.12 that are
attributable to the Excluded Period
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with respect to such additional amount; provided, that if an applicable law,
rule, regulation, guideline or request shall be adopted or made on any date and
shall be applicable to the period (a "Retroactive Period") prior to the date on
which such law, rule, regulation, guideline or request is adopted or made, the
limitation on the Borrower's obligations to pay such additional amounts
hereunder shall not apply to the additional amounts payable in respect of such
Retroactive Period.
SECTION 2.13. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, then, on notice thereof
and demand therefor by such Lender to the Borrower through the Administrative
Agent, (i) the obligation of the Lenders to make or Continue, or to Convert A
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist and (ii) the Borrower
shall upon demand prepay in full all Eurodollar Rate Advances of all Lenders
then outstanding, together with interest accrued thereon, unless the Borrower,
within five Business Days of notice from the Administrative Agent, Converts all
Eurodollar Rate Advances of all the Lenders then outstanding into Base Rate
Advances in accordance with Section 2.10; provided that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.14. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the Notes
without set-off or counterclaim not later than 11:00 A.M. (New York City time)
on the day when due in U.S. dollars to the Administrative Agent at its address
referred to in Section 8.02 in same day funds. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal, interest or Facility Fees ratably (other than amounts payable
pursuant to Section 2.03, 2.08, 2.12, or 2.15 or 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
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(b) All computations of interest based on Citibank's base rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate or the Federal Funds Rate and of Facility Fees and Utilization Fees shall
be made by the Administrative Agent, and all computations of interest pursuant
to Section 2.08 shall be made by a Lender, on the basis of a year of 360 days,
in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or
Facility Fees are payable. Each determination by the Administrative Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes would be due on
a day other than a Business Day, such due date shall be extended to the next
succeeding Business Day, and any such extension of such due date shall in such
case be included in the computation of payment of interest or Facility Fee, as
the case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.15. Taxes.
(a) Any and all payments by the Borrower hereunder or under the Notes
shall be made, in accordance with Section 2.14, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Lender or the Administrative Agent (as the case may be) is organized
or any political subdivision thereof and, in the case of each Lender, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction of
such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or the Administrative Agent, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.15) such Lender or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
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deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes and Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.15) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Such Lender will use
reasonable efforts to contest such a Tax or Other Tax that is, in its opinion,
incorrectly asserted. This indemnification shall be made within 30 days from the
date such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof. If no Taxes are payable in respect of any payment hereunder or under
the Notes, the Borrower will furnish to the Administrative Agent, at such
address, if the Administrative Agent believes there is a question as to the
applicability of any Taxes in the case of any payment hereunder and makes a
request for such opinion, a certificate from each appropriate taxing authority,
or an opinion of counsel acceptable to the Administrative Agent, in either case
stating that such payment is exempt from or not subject to Taxes.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement (in the case of each Bank) and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender (in the case of each other
Lender), and from time to time thereafter if requested in writing by the
Borrower (but only so long as such Lender remains lawfully able to do so), shall
provide the Borrower with Internal Revenue Service form W-8ECI or W-8BEN, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the rate of withholding tax
on payments of interest or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a trade or business
in the United States. If the form provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from "Taxes" as defined in Section 2.15(a).
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.15(e)
(other than if such failure is due
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to a change in law occurring subsequent to the date on which a form originally
was required to be provided, or if such form otherwise is not required under the
first sentence of subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.15(a) with respect to Taxes imposed by the
United States; provided, however, that should a Lender become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.15 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office(s) if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(h) If a Lender or the Administrative Agent (as the case may be) shall
become aware that it is entitled to claim a Refund (as hereinafter defined) from
a taxing authority, such Lender or the Administrative Agent shall promptly
notify the Borrower of the availability of such Refund and shall, within 30 days
after receipt of a written request by the Borrower, make a claim to such taxing
authority for such Refund at the Borrower's expense if, in the judgment of such
Lender or the Administrative Agent (as the case may be), the making such claim
will not be otherwise disadvantageous to it; provided that nothing in this
Section 2.15(h) shall require any Lender or the Administrative Agent to
institute any administrative, judicial or other proceeding (other than the
filing of a claim for any such Refund) to obtain any such Refund. If a Lender or
the Administrative Agent (as the case may be) receives a Refund from a taxing
authority, it shall promptly pay to the Borrower the amount so received (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section 2.15 with respect to the Taxes or Other Taxes
giving rise to such Refund), net of all reasonable out-of-pocket expenses
(including the net amount of taxes, if any, imposed on such Lender or the
Administrative Agent with respect to such Refund) of such Lender or
Administrative Agent, and without interest (other than interest paid by the
relevant taxing authority with respect to such Refund); provided, however, that
the Borrower, upon the request of such Lender or the Administrative Agent, shall
repay the amount paid over to the Borrower (plus penalties, interest and other
charges) to such Lender or the Administrative Agent in the event such Lender or
the Administrative Agent is required to repay such Refund to such taxing
authority. Nothing contained in this Section 2.15 shall require any Lender or
the Administrative Agent to make available any of its tax returns (or any other
information that it deems to be confidential or proprietary). For purposes of
this Section 2.15(h), a "Refund" means a refund of Taxes or Other Taxes (other
than any such refund in the form of a tax credit) for which a Lender or the
Administrative Agent, as the case may be, has been indemnified by the Borrower
(or with respect to which the Borrower has paid additional amounts) pursuant to
this Section 2.15, provided that the entitlement to such refund arises solely
from a manifest error in the amount of such Taxes or Other Taxes so paid.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.08, 2.12,
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2.15 or 8.04(c)) in excess of its ratable share of payments on account of the A
Advances obtained by all the Lenders, such Lender shall forthwith purchase from
the other Lenders such participations in the A Advances made by them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them, provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Effectiveness of this Agreement.
The effectiveness of this Agreement is subject to the conditions precedent that
the Borrower shall have notified the Administrative Agent of the proposed
Effective Date and the Administrative Agent shall have received, on or prior to
August 13, 2004, the following, each (unless otherwise specified below) dated
the date of such effectiveness, in form and substance satisfactory to the
Administrative Agent and (except for the Notes) in sufficient copies for each
Lender (whereupon the Administrative Agent shall notify the Borrower and the
Lenders that the Effective Date has occurred):
(a) The A Notes payable to the order of the Lenders, respectively.
(b) Certified copies of the resolutions of the Board of Directors of
the Borrower approving, and authorizing the execution, delivery and performance
of, this Agreement, the Notes and of all documents evidencing other necessary
corporate actions and governmental approvals, if any, with respect to this
Agreement and the Notes.
(c) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the Borrower's certificate of incorporation and by-laws and
certifying the names and true signatures of the officers of the Borrower
authorized to sign this Agreement and the Notes.
(d) A certificate from the Secretary of State of New Jersey dated as
of a date reasonably close to the date of such effectiveness as to the good
standing of and charter documents filed by the Borrower.
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(e) A favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel
of the Borrower, substantially in the form of Exhibit E hereto and as to such
other matters as any Lender through the Administrative Agent may reasonably
request.
(f) A favorable opinion of Shearman & Sterling LLP, special counsel
for the Administrative Agent, substantially in the form of Exhibit F hereto.
(g) A certificate of a senior officer of the Borrower certifying that
(i) no Default or Event of Default as of the date thereof has occurred and is
continuing, and (ii) the representations and warranties contained in Section
4.01 are true and correct on and as of the date thereof as if made on and as of
such date.
(h) Evidence that the Borrower has terminated the commitments of the
lenders, and payment in full of all debt outstanding, under the $450,000,000
364-Day Credit Agreement dated August 15, 2003 among the Borrower, the lenders
parties thereto and Citibank, N.A., as administrative agent, and each of the
Lenders that is a party to such credit agreement hereby waives, by execution of
this Agreement, the requirement of prior notice under such credit agreement
relating to the termination of commitments thereunder.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The obligation
of each Lender to make an A Advance on the occasion of each A Borrowing
(including the initial A Borrowing) shall be subject to the further conditions
precedent that on the date of such A Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of A Borrowing and the
acceptance by the Borrower of the proceeds of such A Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such A
Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01
(except for, in the case of any A Borrowing after the Effective Date, the
representations and warranties set forth in Section 4.01(e)(iii) and Section
4.01(f)(i)) are true and correct on and as of the date of such A Borrowing,
before and after giving effect to such A Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, and
(b) no event has occurred and is continuing, or would result from such
A Borrowing or from the application of the proceeds therefrom, which constitutes
a Default or an Event of Default.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The obligation
of each Lender which is to make a B Advance on the occasion of a B Borrowing
(including the initial B Borrowing) to make such B Advance as part of such B
Borrowing is subject to the conditions precedent that:
(a) the Administrative Agent shall have received the B Note payable to
the order of such Lender evidencing such B Advance (to the extent that such B
Note is required pursuant to Section 2.03(b) to be delivered prior to such B
Borrowing), and
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(b) on the date of such B Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of B Borrowing and the
acceptance by the Borrower of the proceeds of such B Borrowing shall constitute
a representation and warranty by the Borrower that on the date of such B
Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
(except for, in the case of any B Borrowing after the Effective Date, the
representations and warranties set forth in Section 4.01(e)(iii) and
Section 4.01(f)(i)) are true and correct on and as of the date of such B
Borrowing, before and after giving effect to such B Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(ii) no event has occurred and is continuing, or would result from
such B Borrowing or from the application of the proceeds therefrom, which
constitutes a Default or an Event of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Jersey and is duly qualified
and in good standing under the laws of the respective states in which its
principal operating facilities are located.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene (i) the
Borrower's charter or by-laws or (ii) law or any material contractual
restriction binding on the Borrower or, to the knowledge of the Borrower, any
other contractual restriction binding on the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Borrower of this Agreement or
the Notes.
(d) This Agreement is, and the Notes when delivered hereunder will be,
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms.
(e) (i) The consolidated balance sheets of the Borrower and its
Consolidated Subsidiaries as at September 30, 2003, and the related
statements of income and cash flows of the Borrower and its
Consolidated Subsidiaries for the fiscal year then ended, copies of
which have been furnished to each Bank, fairly present the
consolidated financial condition of the Borrower and its Consolidated
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Subsidiaries as at such date and the consolidated results of the
operations of the Borrower and its Consolidated Subsidiaries for the
fiscal year ended on such date, all in accordance with generally
accepted accounting principles consistently applied.
(ii) The unaudited consolidated balance sheets of the Borrower
and its Consolidated Subsidiaries as of March 31, 2004 and the related
unaudited consolidated statements of income and cash flows for the six
months then ended and set forth in the Borrower's Report on Form 10-Q
for the quarter ended March 31, 2004, copies of which have been
furnished to each Bank, fairly present, in conformity which generally
accepted accounting principles applied on a basis consistent with the
financial statements referred to in clause (i) of this paragraph (e),
the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated
results of operations and cash flows for such six month period
(subject to normal year-end adjustments).
(iii) Since September 30, 2003, there has been no material
adverse change in the business, condition (financial or otherwise) or
results of operations of the Borrower and its Subsidiaries, taken as a
whole, as shown on the consolidated balance sheet as of such date and
the related consolidated statement of net income for the fiscal year
then ended.
(f) There is no pending (or, to the Borrower's knowledge, threatened)
action or proceeding against the Borrower or any of its Subsidiaries before any
court, governmental agency or arbitrator, in which there is likely to be an
adverse decision that (i) would have a material adverse effect on the business,
condition (financial or otherwise) or results of operations of the Borrower and
its Subsidiaries, taken as a whole, or (ii) purports to affect the legality,
validity, binding effect or enforceability of this Agreement or any Note.
(g) No proceeds of any Advance will be used directly or indirectly for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System).
(h) The Borrower and its Subsidiaries have filed (or have obtained
extensions of the time by which they are required to file) all United States
Federal income tax returns and all other material tax returns required to be
filed by them and have paid all taxes shown due on the returns so filed as well
as all other material taxes, assessments and governmental charges which have
become due, except such taxes, if any, as are being contested in good faith and
as to which adequate reserves have been provided.
(i) Each Plan, and, to the knowledge of the Borrower, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law. Without
limiting the foregoing, neither the Borrower nor any of its Subsidiaries has
incurred any liability, other than premiums payable in the ordinary course of
business, to the PBGC established under ERISA in connection with any Plan or
Multiemployer Plan.
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(j) 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.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower covenants
and agrees that, unless the Majority Lenders shall otherwise consent in writing:
(a) Corporate Existence, Compliance with Laws, Etc. The Borrower will
maintain its corporate existence and comply, and cause each Subsidiary to
comply, with all applicable laws, statutes, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA and applicable
Environmental Laws, except for any non-compliance which would not (either
individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect.
(b) Taxes, Charges, Etc. The Borrower will, and will cause each of its
Subsidiaries to, pay and discharge, or cause to be paid and discharged, all
taxes, assessments and other governmental charges imposed upon it or any of its
Subsidiaries and its and their properties, or any part thereof or upon the
income or profits therefrom, as well as all claims for labor, materials or
supplies which if unpaid might by law become a Lien or charge upon any property
of the Borrower or any such Subsidiary, except such items as are being in good
faith appropriately contested by the Borrower or any of its Subsidiaries and as
to which appropriate reserves are being maintained and except for such items the
non-payment of which would not (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
(c) Performance of Material Obligations. The Borrower will, and will
cause each of its Subsidiaries to, perform and observe each contractual, legal
and other obligation binding upon the Borrower or such Subsidiary, as the case
may be, except where the failure to do so would not (either individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect.
(d) Books and Records; Inspection. The Borrower will, and will cause
each of its Subsidiaries to, keep adequate records and books of account, in
which complete entries will be made in accordance with generally accepted
accounting principles applicable to the Borrower and to permit representatives
of any Lender or the Administrative Agent, during normal business hours, to
examine, copy and make extracts from its books and records, to inspect any of
its properties, and to discuss its business and affairs with its officers, all
to the extent reasonably requested by such Lender or the Administrative Agent
(as the case may be).
(e) Property. The Borrower will maintain, preserve and keep its own
and will cause its Subsidiaries to keep their principal plants and properties
and every part thereof in good repair, working order and condition and from time
to time make all needful and proper repairs, renewals, replacements, additions,
betterments and improvements thereto so that at all times the efficiency thereof
shall be fully preserved and maintained, except in each case when the failure
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to do so would not (either individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect.
(f) Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations.
(g) Reporting Requirements. The Borrower will furnish to the Lenders:
(i) as soon as available and in any event within 50 days after the end
of each of the first three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and consolidated statements of
income and cash flows of the Borrower and its Consolidated Subsidiaries for
the period commencing at the end of the previous fiscal year and ending
with the end of such quarter, certified by the chief financial officer of
the Borrower;
(ii) as soon as available and in any event within 100 days after the
end of each fiscal year of the Borrower, a copy of the annual report for
such year for the Borrower and its Consolidated Subsidiaries, containing
consolidated financial statements for such year certified in a manner
acceptable to the Securities and Exchange Commission by Ernst & Young,
L.L.P. or other independent public accountants acceptable to the Majority
Lenders;
(iii) as soon as possible and in any event within five days after the
occurrence of each Default and each Event of Default continuing on the date
of such statement, a statement of the chief financial officer of the
Borrower setting forth details of such Default or Event of Default and the
action which the Borrower has taken and proposes to take with respect
thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to its security holders generally, and
copies of all reports and registration statements which the Borrower or any
Subsidiary of the Borrower files with the Securities and Exchange
Commission or any national securities exchange;
(v) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request; and
(vi) together with the financial statements delivered pursuant to
clauses (i) and (ii) above, a certificate of the Chief Financial Officer,
Treasurer or Assistant Treasurer of the Borrower, in form and substance
satisfactory to the Administrative Agent, setting forth calculations
demonstrating compliance with the covenant set forth in Section 5.01(i).
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Reports and financial statements required to be delivered by the Borrower
pursuant to paragraphs (i), (ii) and (iv) of this Section 5.01(g) shall be
deemed to have been delivered on the date on which it posts such reports, or
reports containing such financial statements, on its website on the Internet at
▇▇▇.▇▇.▇▇▇ or when such reports, or reports containing such financial statements
are posted on the SEC's website at ▇▇▇.▇▇▇.▇▇▇; provided that it shall deliver
paper copies of the reports and financial statements referred to in paragraphs
(i), (ii) and (iv) of this Section 5.01(g) to the Administrative Agent or any
Lender who requests it to deliver such paper copies until written notice to
cease delivering paper copies is given by the Administrative Agent or such
Lender; and provided further that in every instance it shall provide paper
copies of the certificate required by subsection (vi) to the Agent and each of
the Lenders until such time as the Agent shall provide it written notice
otherwise.
(h) Use of Proceeds. The Borrower will use the proceeds of the
Advances hereunder to support the Borrower's commercial paper program and for
other general corporate purposes (in each case in compliance with all applicable
legal and regulatory requirements); provided that neither the Administrative
Agent nor any Lender shall have any responsibility as to the use of any such
proceeds.
(i) Interest Coverage Ratio. The Borrower will maintain at all times
an Interest Coverage Ratio of not less than 5 to 1.
SECTION 5.02. Negative Covenants. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower covenants
and agrees that, without the written consent of the Majority Lenders:
(a) Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, at any time create, assume or suffer to exist any Lien upon or
with respect to any of its properties, whether now owned or hereafter acquired,
or assign, or permit any of its Subsidiaries to assign, any right to receive
income, in each case to secure or provide for the payment of any Debt of any
Person, other than:
(i) Liens existing on assets of any Person at the time such Person
becomes a Subsidiary of the Borrower and not created in contemplation of
such event;
(ii) Liens on assets securing Debt of the Borrower or any Subsidiary
of the Borrower incurred or assumed for the purpose of financing all or any
part of the cost of acquiring such assets, provided that such Lien attaches
to such assets concurrently with or within 90 days after the acquisition
thereof;
(iii) Liens on assets of any Person existing at the time such Person
is merged or consolidated with or into the Borrower or a Subsidiary of the
Borrower and not created in contemplation of such event;
(iv) Liens existing on assets prior to the acquisition thereof by the
Borrower or a Subsidiary of the Borrower and not created in contemplation
of such acquisition;
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(v) Liens covering the land and building in Fukushima, Japan of Nippon
Becton ▇▇▇▇▇▇▇▇▇ ▇▇ (a wholly owned, indirect Subsidiary of the Borrower),
securing debt of approximately (Y)90,000,000;
(vi) Liens arising out of the refinancing, extension, renewal or
refunding of any Debt of the Borrower or any Subsidiary of the Borrower
secured by any Lien permitted by any of the foregoing clauses of this
Section 5.02(a), provided that such Debt is not increased and is not
secured by any additional assets; and
(vii) additional Liens created after the date hereof, provided that
the aggregate principal amount of Debt secured thereby and incurred on and
after the date hereof shall not exceed $50,000,000 in the aggregate at any
one time outstanding.
(b) Mergers, Etc. The Borrower will not merge or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of the
assets (whether now owned or hereafter acquired) of the Borrower and its
Subsidiaries (taken as a whole) to any Person, except that the Borrower may
merge or consolidate with or into any other Person so long as (x) immediately
after giving effect to such transaction, no Default or Event of Default would
exist and (y) the Borrower is the surviving corporation.
(c) Transactions with Affiliates. Except as expressly permitted by
this Agreement, the Borrower will not, nor will it permit any of its
Subsidiaries to, directly or indirectly, make any investment in an Affiliate,
transfer, sell, lease, assign or otherwise dispose of any property to an
Affiliate, merge into or consolidate with or purchase or acquire property from
an Affiliate or enter into any other transaction directly or indirectly with or
for the benefit of an Affiliate (including, without limitation, guarantees and
assumptions of obligations of an Affiliate); provided that:
(i) any Affiliate who is an individual may serve as a director,
officer or employee of the Borrower or any of its Subsidiaries and
receive reasonable compensation for his or her services in such
capacity;
(ii) the Borrower and its Subsidiaries may enter into
transactions with Affiliates if the monetary or business consideration
arising therefrom would be substantially as advantageous to the
Borrower and its Subsidiaries as the monetary or business
consideration that would obtain in a comparable transaction with a
Person not an Affiliate; and
(iii) the foregoing provisions of this Section 5.02(c) shall not
prohibit (x) the Borrower or any Subsidiary from declaring or paying
any lawful dividend or other payment ratably in respect to all of its
capital stock of the relevant class or (y) transactions between or
among the Borrower and its Subsidiaries not involving any other
Affiliates.
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(d) Change in Nature of Business. The Borrower will not make any
material change in the nature of the business of the Borrower and its
Subsidiaries taken as a whole as carried on at the date hereof.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable; or the Borrower shall fail to pay any interest
on any Advance or any fee or other amount payable hereunder or under the Notes
when due and such failure remains unremedied for three Business Days; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement shall
prove to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(g)(iii), 5.01(i) or 5.02; or
(ii) the Borrower shall fail to perform or observe any other term or covenant of
this Agreement on its part to be performed or observed, and such failure remains
unremedied for 30 days after notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any other Debt of the Borrower or such
Subsidiary which is outstanding in a principal amount of at least $25,000,000 in
the aggregate when the same becomes due and payable (whether at scheduled
maturity, by required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), redeemed, purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or
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composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the case of
any such proceeding instituted against the Borrower or any of its Subsidiaries,
such proceeding shall remain undismissed or unstayed for a period of 60 days; or
the Borrower or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Borrower or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order and such proceedings shall not have been stayed or
(ii) there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) A Change in Control shall occur; or
(h) The Borrower shall incur or in the opinion of the Majority Lenders
shall be reasonably likely to incur a liability to a Plan, a Multiemployer Plan
or PBGC (or any combination of the foregoing) that, in the determination of the
Majority Lenders, would (either individually or in the aggregate) materially
adversely affect the business, condition (financial or otherwise) or results of
operations of the Borrower and its Subsidiaries (taken as a whole);
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Administrative Agent to take such action as administrative
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by
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the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Administrative Agent shall
not be required to take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender prompt notice of each notice
given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc.. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender which is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower or any
of its Subsidiaries; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other instrument or document furnished pursuant hereto;
and (vi) shall incur no liability under or in respect of this Agreement by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier or telegram) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 7.03. CUSA and Affiliates. With respect to its Commitment, the
Advances made by it and the Notes issued to it, CUSA shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though it were not the Administrative Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include CUSA in its individual
capacity. CUSA and its Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if CUSA
were not the Administrative Agent and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and
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based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges 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 decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Notes then held by them (or
if no Notes are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limiting the foregoing, each Lender agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Administrative Agent is not reimbursed for such expenses
by the Borrower.
SECTION 7.06. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by the Majority
Lenders. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint a successor Administrative Agent that, unless a Default or
Event of Default shall have occurred and then be continuing, is reasonably
acceptable to the Borrower. If no successor Administrative Agent shall have been
so appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII 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.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.. No amendment or waiver of any
provision of this Agreement or the A Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders (other than the Designated
Bidders), do any of the following: (a) waive any of the conditions specified in
Section 3.01, (b) increase the Commitments of such Lenders (it being understood
that amendments or waivers of conditions precedent, representations, covenants,
Defaults or Events of Default shall not constitute an increase in the Commitment
of any Lender) or subject such Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the A Notes or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal of,
or interest on, the A Notes or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the A Notes, or the number of Lenders, which shall be required for the
Lenders or any of them to take any action hereunder or (f) amend this Section
8.01; provided further that no amendment, waiver or consent shall, unless in
writing and signed by each Lender holding a B Note at such time, (1) reduce the
principal of, or interest on, such B Note or any fees or other amounts payable
hereunder or thereunder with respect thereto, (2) postpone any date fixed for
any payment of principal of, or interest on, such B Note or any fees or other
amounts payable hereunder or thereunder with respect thereto, or (3) subject
such Lender to any additional obligations; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note. This Agreement and the Notes constitute the entire
agreement of the parties with respect to the subject matter hereof and thereof.
SECTION 8.02. Notices, Etc.. (a) All notices and other communications
provided for hereunder shall be (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 8.02(b) and in the proviso to this
Section 8.02(a), if to the Borrower, at its address at Becton, ▇▇▇▇▇▇▇▇▇ and
Company, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ - Vice President and Treasurer, telephone no. (▇▇▇) ▇▇▇-▇▇▇▇,
telecopier number (▇▇▇) ▇▇▇-▇▇▇▇; if to any Lender (other than a Designated
Bidder), at the Domestic Lending Office specified in the Administrative
Questionnaire of such Lender; if to any Designated Bidder, at the Domestic
Lending Office specified in the Designation Agreement pursuant to which it
became a Lender; and if to the Administrative Agent, Citicorp USA, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Bank Loan Syndications,
telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇; or, as to the
Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Administrative Agent, provided that
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materials required to be delivered pursuant to Section 5.01(g)(i), (ii) or (iv)
may be delivered to the Administrative Agent as specified in Section 5.01. All
such notices and communications shall, when mailed, telecopied or telegraphed,
be effective when deposited in the mails, telecopied or delivered to the
telegraph company, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II or VII shall not be effective until
received by the Administrative Agent.
(b) So long as CUSA or any of its Affiliates is the Administrative
Agent, notwithstanding anything to the contrary herein, materials required to be
delivered pursuant to Section 5.01(g)(i), (ii) and (iv) may be delivered to the
Administrative Agent in an electronic medium in a format acceptable to the
Administrative Agent and the Lenders by e-mail at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇.
The Borrower agrees that the Administrative Agent may make such materials, as
well as any other written information, documents, instruments and other material
required to be delivered by the Borrower to the Lenders under this Agreement
(collectively, the "Communications") available to the Lenders by posting such
Communications on Intralinks or a substantially similar electronic system (the
"Platform"). The Borrower acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the
Administrative Agent nor any of its Affiliates warrants the accuracy, adequacy
or completeness of the Communications or the Platform and each expressly
disclaims liability for errors or omissions in the Communications or the
Platform. No warranty of any kind, express, implied or statutory, including,
without limitation, any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other
code defects, is made by the Administrative Agent or any of its Affiliates in
connection with the Platform. The Administrative Agent and the Lenders agree
that all Communications posted on the Platform shall, unless the Borrower
otherwise agrees, be treated as confidential information and all Lenders given
access to the Communications on the Platform will be required to confirm the
confidential nature of the communications under the Platform's standard
confidentiality procedures.
(c) Each Lender agrees that any notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that
if requested by any Lender the Administrative Agent shall deliver a copy of the
Communications to such Lender by email or telecopier. Each Lender agrees (i) to
notify the Administrative Agent in writing of such Lender's e-mail address to
which a Notice may be sent by electronic transmission (including by electronic
communication) on or before the date such Lender becomes a party to this
Agreement (and from time to time thereafter to ensure that the Administrative
Agent has on record an effective e-mail address for such Lender) and (ii) that
any Notice may be sent to such e-mail address.
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SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Indemnification.
(a) The Borrower agrees to pay and reimburse within 30 days after
demand all costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities under
this Agreement. The Borrower further agrees to pay on demand all costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses of the Administrative Agent and each of the Lenders), incurred by the
Administrative Agent or any Lender in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of this Agreement, the
Notes and the other documents to be delivered hereunder, including, without
limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 8.04(a).
(b) The Borrower hereby indemnifies the Administrative Agent,
Citigroup Global Markets Inc., each Lender and each of respective their
Affiliates and their respective officers, directors, employees, agents, advisors
and representatives (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, fees and disbursements of counsel), joint or several, that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or relating to any investigation,
litigation or proceeding or the preparation of any defense with respect thereto
arising out of or in connection with or relating to this Agreement, the Notes or
the transactions contemplated hereby or thereby or any use made or proposed to
be made with the proceeds of the Advances, whether or not such investigation,
litigation or proceeding is brought by the Borrower, any of its shareholders or
creditors, an Indemnified Party or any other Person, or an Indemnified Party is
otherwise a party thereto, and whether or not any of the conditions precedent
set forth in Article III are satisfied or the other transactions contemplated by
this Agreement are consummated, except to the extent such claim, damage, loss,
liability or expense results from such Indemnified Party's gross negligence or
willful misconduct, or from a violation by such Indemnified Party of any law,
order, regulation or agreement to which such Indemnified Party or its properties
is subject, or from a breach of this Agreement.
The Borrower hereby further agrees that no Indemnified Party shall
have any liability (whether direct or indirect, in contract, tort or otherwise)
to the Borrower for or in connection with or relating to this Agreement, the
Notes or the transactions contemplated hereby or thereby or any use made or
proposed to be made with the proceeds of the Advances or any damages arising
from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the transactions
contemplated hereby, except to the extent such liability or damages are
found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party's gross negligence or willful
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misconduct; provided that nothing in this paragraph shall be deemed to
constitute a waiver of any claim the Borrower may have, or to exculpate any
Person from any liability that such Person may have to the Borrower, for breach
by such Person of its obligations under this Agreement.
(c) If any payment of principal of, or Conversion or Continuation of,
any Eurodollar Rate Advance is made other than on the last day of an Interest
Period for such Advance, as a result of acceleration of the maturity of the
Notes pursuant to Section 6.01 or for any other reason (other than a payment or
Conversion pursuant to Section 2.13), the Borrower shall pay (subject to the
last sentence of this Section 8.04(c)) to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably incur as a result
of such payment, Continuation or Conversion, including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance. The Borrower shall pay amounts owing to
any Lender pursuant to this Section 8.04(c) within 30 days after receipt from
such Lender of a certificate setting forth in reasonable detail the calculation
of the amount such Lender is entitled to claim under this Section 8.04(c) (which
certificate shall be conclusive and binding for all purposes, absent manifest
error).
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default under Section 6.01(a) or (ii) the making of
the request or the granting of the consent specified by Section 6.01 to
authorize the Administrative Agent to declare the Notes due and payable pursuant
to the provisions of Section 6.01, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower (all such deposits and other indebtedness being herein
called "Obligations") against any and all of the obligations of the Borrower now
or hereafter existing under this Agreement and any Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although the Obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application made by
such Lender or such Affiliate, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender and its Affiliate under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which such
Lender or such Affiliate may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when (a) it shall have been executed by the Borrower and the Administrative
Agent and when the Administrative Agent shall have been notified by each Bank
that such Bank has executed it and (b) the Effective Date shall have occurred,
and thereafter shall be binding upon and inure to the benefit of the Borrower,
the Administrative Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders. Upon the effectiveness of this Agreement, all commitments of the
lenders under the Existing Credit Agreement shall terminate, the Lenders under
this Agreement shall have the commitments herein
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stated, and each of the Lenders that is a party to the Existing Credit Agreement
hereby waives, by execution of this Agreement, the requirement of prior notice
under the Existing Credit Agreement relating to the termination of commitments
thereunder.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than a Designated Bidder) may, with notice to
and the consent of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower, such consents not to be
unreasonably withheld (but not otherwise), assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) no
such consent by the Borrower or the Administrative Agent shall be required in
the case of any assignment to an Affiliate of the assigning Lender, (ii) each
such assignment shall be of a constant, and not a varying, percentage of all
rights and obligations of the assigning Lender under this Agreement (other than
any right to make B Advances, B Advances owing to it or B Notes), (iii) the
amount of the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 and shall
be an integral multiple of $1,000,000 unless the Borrower and the Administrative
Agent otherwise agree, (iv) each such assignment shall be to an Eligible
Assignee, (v) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment, and (vi) the parties to each such assignment (other than the
Borrower) shall deliver to the Administrative Agent a processing and recordation
fee of $3,500. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and 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 Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this
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Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender 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 decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to
take such action as administrative agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Administrative Agent by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed (and the
Borrower and the Administrative Agent shall have consented to the relevant
assignment to the extent required pursuant to Section 8.07(a)) and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes (X) a new A Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new A Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder and (Y) new B Note or Notes to the order of
such Eligible Assignee in an amount equal to the principal amount of the B
Advances (if any) acquired by it pursuant to such Assignment and Acceptance and,
if the assigning Lender has retained a portion of such B Advances, new B Note or
Notes to the order of the assigning Lender in an amount equal to the principal
amount of the B Advances retained by it hereunder). Such new A Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered A Note or Notes, and such new B Note or Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered B Note or Notes. All such Notes shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit A-1 or A-2 hereto, as applicable.
(d) Each Lender (other than the Designated Bidders) may designate one
or more banks or other entities to have a right to make B Advances as a Lender
pursuant to Section 2.03; provided, however, that (i) no such Lender shall be
entitled to make more than two such designations, (ii) each such Lender making
one or more of such designations shall retain the right to make B Advances as a
Lender pursuant to Section 2.03, (iii) each such designation shall be to a
Designated Bidder and (iv) the parties to each such designation shall execute
and deliver to the Administrative Agent, for its acceptance and recording in the
Register, a Designation Agreement. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Designation
Agreement, the designee thereunder shall be a party
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hereto with a right to make B Advances as a Lender pursuant to Section 2.03 and
the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the Lender
making the designation thereunder and its designee thereunder confirm and agree
with each other and the other parties hereto as follows: (i) such Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such designee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into the
Designation Agreement; (iv) such designee will, independently and without
reliance upon the Administrative Agent, such designating Lender 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 decisions in taking or not taking
action under this Agreement; (v) such designee confirms that it is a Designated
Bidder; (vi) such designee appoints and authorizes the Administrative Agent to
take such action as administrative agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Administrative Agent by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such designee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(g) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance and each Designation
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of each of the Lenders and, with respect to Lenders
other than Designated Bidders, the Commitment of, and principal amount of the A
Advances owing to, each such Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for the purposes, absent
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for the purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without
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limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
(v) no participant under any such participation agreement shall have any right
to approve any amendment or waiver of any provision of this Agreement or any
Note, or to consent to any departure by the Borrower therefrom, except to the
extent that any such amendment, waiver or consent would (x) reduce the principal
of, or interest on, the Notes or any fee or other amounts payable hereunder, in
each case to the extent the same are subject to such participation, or (y)
postpone any date fixed for the payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
the same are subject to such participation.
(i) Any Lender may, in connection with any assignment, designation or
participation or proposed assignment, designation or participation pursuant to
this Section 8.07, disclose to the assignee, designee or participant or proposed
assignee, designee or participant, any information relating to the Borrower or
any of its Subsidiaries furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrower or any such Subsidiary received by it from such Lender on the terms set
forth in Section 8.13.
(j) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(k) All amounts payable by the Company to any Lender under Sections
2.08, 2.12, 2.15 and 8.04(c) in respect of Advances held by such Lender, and
such Lender's Commitment, shall be determined as if such Lender had not sold or
agreed to sell any participations in such Advances or Commitment and as if such
Lender were funding each of such Advances and Commitments in the same way that
it is funding the portion of such Advances and Commitment in which no
participations have been sold. No assignee or other transferee of any Lender's
rights shall be entitled to receive any greater payment under Section 2.12 than
such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made (i) with the Borrower's prior written
consent, (ii) by reason of the provisions of said Section 2.12 requiring such
Lender to designate a different Applicable Lending Office as provided in said
Section 2.12 or (iii) at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 8.08. Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of
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New York. The Borrower hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Borrower irrevocably waives, to the fullest extent
permitted by applicable law, any objection that it may now or hereafter have to
the laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
SECTION 8.09. Severability. In case any provision in this Agreement or
in any Note shall be held to be invalid, illegal or unenforceable, such
provision shall be severable from the rest of this Agreement or such Note, as
the case may be, and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 8.11. Survival. The obligations of the Borrower under Sections
2.08, 2.12, 2.15 and 8.04, and the obligations of the Lenders under Section
7.05, shall survive the repayment of the Advances and the termination of the
Commitments. In addition, each representation and warranty made, or deemed to be
made by any Notice of A Borrowing or Notice of B Borrowing, herein or pursuant
hereto shall survive the making of such representation and warranty, and no
Lender shall be deemed to have waived, by reason of making any Advance, any
Default or Event of Default that may arise by reason of such representation or
warranty proving to have been false or misleading, notwithstanding that such
Lender or the Administrative Agent may have had notice or knowledge or reason to
believe that such representation or warranty was false or misleading at the time
such extension of credit was made.
SECTION 8.12. Substitution of Lender. If (a) the obligation of any
Lender to make, Continue or otherwise maintain Eurodollar Rate Advances has been
suspended pursuant to Section 2.13, (b) any Lender has demanded compensation
under Section 2.12 or 2.15, (c) any Lender shall fail to consent to an amendment
or a waiver which pursuant to the terms of Section 8.01 requires the consent of
all Lenders and with respect to which the Majority Lenders shall have granted
their consent or (d) any Lender defaults in its obligations to fund Advances
hereunder, the Borrower shall have the right, if no Default or Event of Default
then exists, to replace such Lender (the "Replaced Lender") with one or more
Eligible Assignee(s), (each, a "Replacement Lender") acceptable to the
Administrative Agent, provided that:
(i) at the time of any replacement pursuant to this Section 8.12, the
Replacement Lenders shall enter into one or more Assignment and Acceptance
Agreements, pursuant to which such Replacement Lenders shall acquire the
Commitments and outstanding Advances of the Replaced Lender and, in
connection therewith, shall pay to the Replaced Lender in respect thereof
an amount equal to the sum of (A) an amount equal to the principal of, and
all accrued interest on, all outstanding Advances of the Replaced Lender,
(B) an amount equal to all accrued and unpaid Facility Fees owing to the
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Replaced Lender and (C) an amount equal to the amount which would be
payable by the Borrower to the Replaced Lender pursuant to Section 8.04(c)
if the Borrower prepaid at the time of such replacement all of the Advances
of such Replaced Lender outstanding at such time; and
(ii) all obligations of the Borrower owing to the Replaced Lender
(other than those specifically described in clause (i) above in respect of
which the assignment purchase price has been, or is concurrently being,
paid) shall be paid in full to such Replaced Lender concurrently with such
replacement.
Upon (I) the execution of the respective Assignment and Acceptance Agreements,
(II) the payment of amounts referred to in clauses (i) and (ii) above and (III)
if so requested by a Replacement Lender, delivery to such Replacement Lender of
the appropriate Note or Notes executed by the Borrower, each Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder.
SECTION 8.13. Confidentiality. Each Lender agrees to hold all
non-public information obtained pursuant to the provisions of this Agreement in
accordance with its customary procedure for handling confidential information of
this nature and in accordance with safe and sound banking practices, provided
that nothing herein shall prevent any Lender from disclosing such information
(i) to any other Lender or to the Administrative Agent (or to Citigroup Global
Markets Inc.), (ii) upon the order of any court or administrative agency or
otherwise to the extent required by statute, rule, regulation or judicial
process, (iii) to bank examiners or upon the request or demand of any other
regulatory agency or authority, (iv) which had been publicly disclosed other
than as a result of a disclosure by the Administrative Agent or any Lender
prohibited by this Agreement, (v) in connection with any litigation to which any
one or more of the Lenders or the Administrative Agent is a party, or in
connection with the exercise of any remedy hereunder or under any Note, (vi) to
such Lender's or Administrative Agent's legal counsel and independent auditors
and accountants and (vii) subject to provisions substantially similar to those
contained in this Section, to (A) any actual or proposed participant or assignee
or (B) any actual or prospective counterparty (or its advisors) to any
securitization, swap or derivative transaction relating to the Borrower, and its
Subsidiaries, and the obligations of the Borrower under this Agreement to the
extent they relate to such securitization, swap or derivative transaction.
SECTION 8.14. No Fiduciary Relationship. The Borrower acknowledges
that neither the Administrative Agent nor any Lender (in their respective
capacities as such) has any fiduciary relationship with, or fiduciary duty to,
the Borrower arising out of or in connection with this Agreement or any of the
Notes, and the relationship between the Administrative Agent and the Lenders (in
such capacities), on the one hand, and the Borrower, on the other, in connection
herewith or therewith is solely that of creditor and debtor. This Agreement does
not create a joint venture among the parties.
-51-
SECTION 8.15. Patriot Act Notice. Each Lender that is subject to the
Act (as hereinafter defined) and the Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrower that, pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Agent, as
applicable, to identify the Borrower in accordance with the Act.
SECTION 8.16. Waiver of Jury Trial. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY
By
-------------------------------------
Name:
Title:
CITICORP USA, INC.,
as Administrative Agent
By
-------------------------------------
Name:
Title:
Administrative Agent
$95,000,000 CITICORP USA, INC.
By
-------------------------------------
Name:
Title:
Syndication Agent
$95,000,000 BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By
-------------------------------------
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------- -------
$60,000,000 BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By
---------------------------------
Name:
Title:
$60,000,000 MELLON BANK, N.A.
By
---------------------------------
Name:
Title:
$60,000,000 MIZUHO CORPORATE BANK, LTD.
By
---------------------------------
Name:
Title:
$60,000,000 SUMITOMO MITSUI BANKING CORPORATION
By
---------------------------------
Name:
Title:
$60,000,000 THE BANK OF NEW YORK
By
---------------------------------
Name:
Title:
$45,000,000 BANK OF AMERICA, N.A.
By
---------------------------------
Name:
Title:
-53-
Commitment Lenders
---------- -------
$45,000,000 BNP PARIBAS
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
$45,000,000 ING CAPITAL LLC
By
---------------------------------
Name:
Title:
$45,000,000 JPMORGAN CHASE BANK
By
---------------------------------
Name:
Title:
$45,000,000 STANDARD CHARTERED BANK
By
---------------------------------
Name:
Title:
$45,000,000 UFJ BANK LIMITED
By
---------------------------------
Name:
Title:
$35,000,000 BANCA DI ROMA, NEW YORK BRANCH
By
---------------------------------
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------- -------
$35,000,000 BANK OF IRELAND
By
---------------------------------
Name:
Title:
$35,000,000 THE NORTHERN TRUST COMPANY
By
---------------------------------
Name:
Title:
$35,000,000 INTESABCI NEW YORK BRANCH
By
---------------------------------
Name:
Title:
$900,000,000.00 Total of the Commitments
EXHIBIT A-1
FORM OF A NOTE
U.S.$ Dated: August , 2004
-------------- --
FOR VALUE RECEIVED, the undersigned, BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY, a
New Jersey corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below) on the Termination
Date (as so defined) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the A
Advances (as defined below) made by the Lender to the Borrower pursuant to the
Credit Agreement then outstanding.
The Borrower promises to pay interest on the unpaid principal amount
of each A Advance from the date of such A Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citicorp USA, Inc., as Administrative Agent, at ▇▇▇ ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, in same day funds. Each A Advance made by
the Lender to the Borrower pursuant to the Credit Agreement, and all payments
made on account of principal thereof, shall be recorded by the Lender and, prior
to any transfer hereof, endorsed on the grid attached hereto which is part of
this Promissory Note; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This Promissory Note is one of the A Notes referred to in, and is
entitled to the benefits of, the Amended and Restated Five Year Credit Agreement
dated as of August __, 2004 (the "Credit Agreement") among the Borrower, the
Lender and certain other banks parties thereto, Bank of Tokyo-Mitsubishi Trust
Company, as syndication agent, and Citicorp USA, Inc., as Administrative Agent
for the Lender and such other banks. The Credit Agreement, among other things,
(i) provides for the making of advances (the "A Advances") by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such A Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
-2-
This Promissory Note shall be governed by, and construed in accordance
with, the law of the State of New York, United States.
BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY
By
-------------------------------------
Name:
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
==========================================================
Amount of Unpaid of
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
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==========================================================
EXHIBIT A-2
FORM OF B NOTE
U.S.$ Dated: ,
-------------- ---------- -- -----
FOR VALUE RECEIVED, the undersigned, BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY, a
New Jersey corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below), on
______________, _____, the principal amount of __________ Dollars
($___________).
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of _____
days for the actual number of days elapsed).
Interest Payment Date or Dates: ___________________________
Both principal and interest are payable in lawful money of the United
States of America to ______________ or the account of the Lender at the office
of ________________________________, at _____________________, in same day
funds.
This Promissory Note is one of the B Notes referred to in, and is
entitled to the benefits of, the Amended and Restated Five Year Credit Agreement
dated as of August 13, 2004 (the "Credit Agreement") among the Borrower, the
Lender and certain other banks parties thereto, Bank of Tokyo-Mitsubishi Trust
Company, as syndication agent, and Citicorp USA, Inc., as Administrative Agent
for the Lender and such other banks. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the law of the State of New York, United States.
BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY
By
--------------------------------
Name:
Title:
EXHIBIT B-1
NOTICE OF A BORROWING
Citicorp USA, Inc., as Administrative
Agent for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
----------
[Date]
Ladies and Gentlemen:
The undersigned, Becton, ▇▇▇▇▇▇▇▇▇ and Company, refers to the Amended
and Restated Five Year Credit Agreement, dated as of August 13, 2004 (the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain Lenders parties thereto, Bank of
Tokyo-Mitsubishi Trust Company, as syndication agent, and Citicorp USA, Inc., as
Administrative Agent for said Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby
requests an A Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such A Borrowing (the "Proposed A
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed A Borrowing is ___________ __,
_____.
(ii) The Type of A Advances comprising the Proposed A Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is $___________.
[(iv) The initial Interest Period for each A Advance made as part of the
Proposed A Borrowing is ______ month[s]](1).
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed A
Borrowing:
(A) the representations and warranties contained in Section 4.01
(other than Section 4.01(e)(iii) and Section 4.01(f)(i)) are correct,
before and after giving effect to the
----------
(1) For Eurodollar Rate Advances only.
-2-
Proposed A Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed A Borrowing or from the application of the proceeds therefrom,
which constitutes a Default or an Event of Default.
Very truly yours,
BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY
By
--------------------------------
Name:
Title:
EXHIBIT B-2
NOTICE OF B BORROWING
Citicorp USA, Inc., as Administrative
Agent for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
----------
[Date]
Ladies and Gentlemen:
The undersigned, Becton, ▇▇▇▇▇▇▇▇▇ and Company, refers to the Amended
and Restated Five Year Credit Agreement, dated as of August 13, 2004 (the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, certain Lenders parties thereto, Bank of
Tokyo-Mitsubishi Trust Company, as syndication agent, and Citicorp USA, Inc., as
Administrative Agent for said Lenders, and hereby gives you notice pursuant to
Section 2.03 of the Credit Agreement that the undersigned hereby requests a B
Borrowing under the Credit Agreement, and in that connection sets forth the
terms on which such B Borrowing (the "Proposed B Borrowing") is requested to be
made:
(A) Date of B Borrowing _______________________
(B) Amount of B Borrowing _______________________
(C) Maturity Date _______________________
(D) Interest Rate Basis _______________________
(E) Interest Payment Date(s) _______________________
(F) _______________________ _______________________
(G) _______________________ _______________________
(H) _______________________ _______________________
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed B
Borrowing:
(a) the representations and warranties contained in Section 4.01
(other than Section 4.01(e)(iii) and Section 4.01(f)(i)) are correct,
before and after giving effect to the Proposed B Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date;
-2-
(b) no event has occurred and is continuing, or would result from the
Proposed B Borrowing or from the application of the proceeds therefrom,
which constitutes a Default or an Event of Default; and
(c) the aggregate amount of the Proposed B Borrowing and all other
Borrowings to be made on the same day under the Credit Agreement is within
the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed B Borrowing is to be
made available to it in accordance with Section 2.03(a)(v) of the Credit
Agreement.
Very truly yours,
BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY
By
--------------------------------
Name:
Title:
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Dated ,
------------ -- -----
Reference is made to the Amended and Restated Five Year Credit
Agreement dated as of August 13, 2004 (the "Credit Agreement") among Becton,
▇▇▇▇▇▇▇▇▇ and Company, a New Jersey corporation (the "Borrower"), the Lenders
(as defined in the Credit Agreement), Bank of Tokyo-Mitsubishi Trust Company, as
syndication agent, and Citicorp USA, Inc., as Administrative Agent for the
Lenders (the "Administrative Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
_____________ (the "Assignor") and _____________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor's rights and obligations under the Credit Agreement as of
the date hereof [(other than in respect of B Advances and B Notes)](2) which
represents the percentage interest specified on Schedule 1 of all outstanding
rights and obligations under the Credit Agreement [(other than in respect of B
Advances and B Notes)](1), including, without limitation, such interest in the
Assignor's Commitment, the A Advances and B Advances owing to the Assignor, and
the A Note[s] and B Note[s] held by the Assignor. After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of the A Advances
and B Advances owing to the Assignee will be as set forth in Section 2 of
Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the A Note[s] and B Note[s] referred to in paragraph 1 above
and requests that the Administrative Agent exchange such Note[s] for (X) a new A
Note to the order of the Assignee in an amount equal to the Commitment assumed
by it pursuant hereto and a new A Note to the order of the Assignor in an amount
equal to the Commitment retained by it under the Credit Agreement and (Y) new B
Note or Notes to the order of the Assignee in an amount equal to the principal
amount of the B Advances (if any) acquired by it pursuant hereto and, if the
Assignor has retained a portion of such B Advances, new B Note or Notes to the
order of the
----------
(2) Delete bracketed text if B Advances are covered by this Assignment and
Acceptance.
-2-
Assignor in an amount equal to the principal amount of the B Advances retained
by it under the Credit Agreement, in each case specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor 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 decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender; [and] (vi) specifies as its Domestic Lending Office (and address for
notices) and Eurodollar Lending Office the offices set forth beneath its name on
the signature pages hereof [and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement and the Notes or such other documents as are necessary to indicate
that all such payments are subject to such rates at a rate reduced by an
applicable tax treaty].(3)
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee and the consent of the Borrower (to the extent
required pursuant to Section 8.07 of the Credit Agreement), it will be delivered
to the Administrative Agent for acceptance and recording by the Administrative
Agent. The effective date of this Assignment and Acceptance shall be the date of
acceptance thereof by the Administrative Agent, unless otherwise specified on
Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and Facility Fees with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under
----------
(3) If the Assignee is organized under the laws of a jurisdiction outside the
United States
-3-
the Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage assigned to Assignee ______________%
Assignee's Commitment $______________
Aggregate outstanding principal
amount of A Advances assigned $______________
Principal Amount of A Note
payable to Assignee $______________
Principal Amount of A Note
payable to Assignor $______________
Aggregate outstanding principal
amount of B Advances assigned $______________
Principal Amount of B Note
payable to Assignee $______________
Principal Amount of B Note
payable to Assignor $______________
Effective Date (if other than
date of acceptance by
Administrative Agent)* __________ __, _____
-2-
[NAME OF ASSIGNOR], as Assignor
By
--------------------------------
Name:
Title:
[NAME OF ASSIGNEE], as Assignee
By
--------------------------------
Name:
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than the date of acceptance by the
Administrative Agent.
Accepted this ____ day
of _______, _____
CITICORP USA, INC., as
Administrative Agent
By
---------------------------
Name:
Title:
CONSENTED TO:
BECTON, ▇▇▇▇▇▇▇▇▇ AND COMPANY
By
---------------------------
Name:
Title:
EXHIBIT D
DESIGNATION AGREEMENT
Dated ,
------------- -- -----
Reference is made to the Amended and Restated Five Year Credit
Agreement dated as of August 13, 2004 (the "Credit Agreement") among Becton,
▇▇▇▇▇▇▇▇▇ and Company, a New Jersey corporation (the "Borrower"), the Lenders
(as defined in the Credit Agreement), Bank of Tokyo-Mitsubishi Trust Company, as
syndication agent, and Citicorp USA, Inc., as Administrative Agent for the
Lenders (the "Administrative Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
____________ (the "Designator") and ____________ (the "Designee")
agree as follows:
1. The Designator hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make B Advances pursuant to
Section 2.03 of the Credit Agreement.
2. The Designator makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto and
(ii) the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Designator 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 decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is a Designated Bidder; (iv)
appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender; and (vi) specifies as its Applicable Lending Office with respect to B
Advances (and address for notices) the offices set forth beneath its name on the
signature pages hereof.
4. Following the execution of this Designation Agreement by the
Designator and its Designee, it will be delivered to the Administrative Agent
for acceptance and recording by the
-2-
Administrative Agent. The effective date of this Designation Agreement shall be
the date of acceptance thereof by the Administrative Agent, unless otherwise
specified on the signature page hereto (the "Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make B Advances as a Lender pursuant to Section 2.03 of the
Credit Agreement and the rights and obligations of a Lender related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Designation
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
Effective Date*: ,
------------- -- -----
[NAME OF DESIGNATOR]
By
-------------------------------------
Name:
Title:
[NAME OF DESIGNEE]
By
-------------------------------------
Name:
Title:
Applicable Lending
Office (and address
for notices)
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
Accepted this ____ day
of __________________, _____
CITICORP USA, INC., as
Administrative Agent
By
----------------------------------
Name:
Title:
* This date should be no earlier than the date of acceptance by the
Administrative Agent.
EXHIBIT E
[Form of Opinion of Counsel of the Borrower]
August , 2004
--
To the Banks party to the
Credit Agreement referred to
below
Bank of Tokyo-Mitsubishi Trust Company, as Syndication Agent
Citicorp USA, Inc., as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am General Counsel of Becton, ▇▇▇▇▇▇▇▇▇ and Company (the "Borrower")
and with attorneys in my department have acted as counsel to the Borrower in
connection with the Amended and Restated Five Year Credit Agreement (the "Credit
Agreement") dated as of August 13, 2004, among the Borrower, the lenders named
therein, Bank of Tokyo-Mitsubishi Trust Company, as syndication agent, and
Citicorp USA, Inc., as Administrative Agent, providing for loans to be made by
said lenders to the Borrower in an aggregate principal amount not exceeding
$900,000,000. Terms defined in the Credit Agreement are used in this opinion
letter as defined therein. This opinion letter is being delivered pursuant to
Section 3.01(e) of the Credit Agreement.
In rendering the opinion expressed below, I, or attorneys under my
supervision, have examined the following agreements, instruments and other
documents:
(a) the Credit Agreement;
(b) the Notes issued on the date hereof (collectively with the Credit
Agreement, the "Credit Documents"); and
(c) such corporate records of the Borrower and such other documents
as I have deemed necessary as a basis for the opinions expressed
below.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity with authentic original documents of all documents submitted to us as
copies. When relevant facts were not independently established, we have relied
upon certificates of governmental officials and appropriate representatives of
the Borrower and upon representations made in or pursuant to the Credit
Agreement.
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In rendering the opinions expressed below, I have assumed, with
respect to all of the documents referred to in this opinion letter, that
(except, to the extent set forth in the opinions expressed below, as to the
Borrower):
(i) such documents have been duly authorized by, have been duly executed
and delivered by, and constitute legal, valid, binding and enforceable
obligations of, all of the parties to such documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and validly
existing and have the power and authority (corporate or other) to
execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as I have deemed necessary as a basis for the opinions
expressed below, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of New Jersey.
2. The Borrower has all requisite corporate power to execute and
deliver, and to perform its obligations and to incur liabilities under, the
Credit Documents.
3. The execution, delivery and performance by the Borrower of, and the
incurrence by the Borrower of liabilities under, each Credit Document have
been duly authorized by all necessary corporate action on the part of the
Borrower.
4. Each Credit Document has been duly executed and delivered by the
Borrower.
5. Each Credit Document constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer or other
similar laws relating to or affecting the rights of creditors generally and
except as the enforceability of the Credit Documents is subject to the
application of general principles of equity (regardless of whether
considered in a proceeding in equity or at law), including, without
limitation, (a) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (b) concepts of
materiality, reasonableness, good faith and fair dealing.
6. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency of
the United States of America or the State of New York is required on the
part of the Borrower for the execution, delivery or performance by the
Borrower of, or for the incurrence by the Borrower of any liabilities
under, any of the Credit Documents.
-3-
7. The execution, delivery and performance by the Borrower of, and the
consummation by the Borrower of the transactions contemplated by, the
Credit Documents do not (a) violate any provision of the charter or by-laws
of the Borrower, (b) violate any applicable law, rule or regulation of the
United States of America, the State of New Jersey or the State of New York,
(c) violate any order, writ, injunction or decree of any court or
governmental authority or agency or any arbitral award applicable to the
Borrower and its Subsidiaries of which I have knowledge or (d) result in a
breach of, constitute a default under, require any consent under, or result
in the acceleration or required prepayment of any indebtedness pursuant to
the terms of, any agreement or instrument of which I have knowledge to
which the Borrower and its Subsidiaries is a party or by which any of them
is bound or to which any of them is subject, or result in the creation or
imposition of any Lien upon any Property of the Borrower pursuant to the
terms of any such agreement or instrument.
8. There is no pending (or, to my knowledge, threatened) action or
proceeding against the Borrower or any of its Subsidiaries before any
court, governmental agency or arbitrator, in which there is likely to be an
adverse decision that (i) would have a material adverse effect on the
business, condition (financial or otherwise) or results of operations of
the Borrower and its Subsidiaries, taken as a whole, or (ii) purports to
affect the legality, validity, binding effect or enforceability of the
Credit Agreement or any Note.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 8.04(b) of the Credit Agreement may
be limited by laws limiting the enforceability of provisions exculpating or
exempting a party from, or requiring indemnification of a party for, its
own action or inaction.
(B) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) I express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located that limit the interest, fees
or other charges such Lender may impose, (ii) Section 8.05 of the Credit
Agreement, (iii) Section 7.05 of the Credit Agreement, (iv) the second
sentence of Section 8.08 of the Credit Agreement, insofar as such sentence
relates to the subject matter jurisdiction of the United States District
Court for the Southern District of New York to adjudicate any controversy
related to the Credit Documents, (v) the third sentence of Section 8.08 of
the Credit Agreement and (vi) Section 8.09 of the Credit Agreement.
The foregoing opinions are limited to matters involving the Federal
laws of the United States, the law of the State of New Jersey and the law of the
State of New York, and I do not express any opinion as to the laws of any other
jurisdiction.
In delivering the foregoing opinion, I have, with your approval,
relied as to all matters governed by the laws of the State of New Jersey upon
the opinion of even date herewith
-4-
of ▇▇▇▇ ▇▇▇▇▇▇▇, Esq., Associate General Counsel of the Borrower, a copy of
which has been furnished to you. In my opinion, such opinion is satisfactory in
form and scope and you are justified in relying thereon.
At the request of the Borrower, this opinion letter is, pursuant to
Section 3.01(e) of the Credit Agreement, provided to you by me in my capacity as
General Counsel of the Borrower and may not be relied upon by any Person for any
purpose other than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, my prior written consent.
Very truly yours,
EXHIBIT F
[Form of Opinion of Special New York Counsel
to the Administrative Agent]
August , 2004
--
To the Initial Lenders party to the
Credit Agreement referred to
below and to Citicorp USA, Inc.,
as Agent
Becton, ▇▇▇▇▇▇▇▇▇ and Company
Ladies and Gentlemen:
We have acted as counsel to Citicorp USA, Inc., as Administrative
Agent (the "Agent"), in connection with the Amended and Restated Five Year
Credit Agreement, dated as of August 13, 2004 (the "Credit Agreement"), among
Becton, ▇▇▇▇▇▇▇▇▇ and Company, a New Jersey corporation (the "Borrower"), and
each of you. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
In that connection, we have reviewed originals or copies of the
following documents:
(a) The Credit Agreement.
(b) The Notes executed by the Borrower and delivered on the date
hereof.
The documents described in the foregoing clauses (a) and (b) are collectively
referred to herein as the "Opinion Documents."
We have also reviewed originals or copies of such other agreements and
documents as we have deemed necessary as a basis for the opinion expressed
below.
In our review of the Opinion Documents and other documents, we have
assumed:
(A) The genuineness of all signatures.
(B) The authenticity of the originals of the documents submitted
to us.
(C) The conformity to authentic originals of any documents
submitted to us as copies.
(D) As to matters of fact, the truthfulness of the
representations made in the Credit Agreement.
-2-
(E) That each of the Opinion Documents is the legal, valid and
binding obligation of each party thereto, other than the
Borrower, enforceable against each such party in accordance
with its terms.
(F) That:
(1) The Borrower is an entity duly organized and validly
existing under the laws of the jurisdiction of its organization.
(2) The Borrower has full power to execute, deliver and
perform, and has duly executed and delivered, the Opinion
Documents.
(3) The execution, delivery and performance by the Borrower
of the Opinion Documents have been duly authorized by all
necessary action (corporate or otherwise) and do not:
(a) contravene its certificate or articles of
incorporation, by-laws or other organizational documents;
(b) except with respect to Generally Applicable Law,
violate any law, rule or regulation applicable to it; or
(c) result in any conflict with or breach of any
agreement or document binding on it of which any addressee
hereof has knowledge, has received notice or has reason to
know.
(4) Except with respect to Generally Applicable Law, no
authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or (to
the extent the same is required under any agreement or document
binding on it of which an addressee hereof has knowledge, has
received notice or has reason to know) any other third party is
required for the due execution, delivery or performance by the
Borrower of any Opinion Document or, if any such authorization,
approval, action, notice or filing is required, it has been duly
obtained, taken, given or made and is in full force and effect.
We have not independently established the validity of the
foregoing assumptions.
"Generally Applicable Law" means the federal law of the United States
of America, and the law of the State of New York (including the rules or
regulations promulgated thereunder or pursuant thereto), that a New York lawyer
exercising customary professional diligence would reasonably be expected to
recognize as being applicable to the Borrower, the Opinion Documents or the
transactions governed by the Opinion Documents. Without limiting the generality
of the foregoing definition of Generally Applicable Law, the term "Generally
Applicable Law" does not include any law, rule or regulation that is applicable
to the Borrower, the Opinion Documents or such transactions solely because such
law, rule or regulation is part of a regulatory regime applicable to the
specific assets or business of any party to any of the Opinion Documents or any
of its affiliates.
-3-
Based upon the foregoing and upon such other investigation as we have
deemed necessary and subject to the qualifications set forth below, we are of
the opinion that each Opinion Document is the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms.
Our opinion expressed above is subject to the following
qualifications:
(a) Our opinion is subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally (including without limitation all laws relating to
fraudulent transfers).
(b) Our opinion is subject to the effect of general principles of
equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(c) We express no opinion with respect to the enforceability of
indemnification provisions, or of release or exculpation provisions,
contained in the Opinion Documents to the extent that enforcement thereof
is contrary to public policy regarding the indemnification against or
release or exculpation of criminal violations, intentional harm or
violations of securities laws.
(d) Our opinion is limited to Generally Applicable Law.
A copy of this opinion letter may be delivered by any of you to any
person that becomes a Lender in accordance with the provisions of the Credit
Agreement. Any such person may rely on the opinions expressed above as if this
opinion letter were addressed and delivered to such person on the date hereof.
This opinion letter is rendered to you in connection with the
transactions contemplated by the Opinion Documents. This opinion letter may not
be relied upon by you or any person entitled to rely on this opinion pursuant to
the preceding paragraph for any other purpose without our prior written consent.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you of any development or circumstance of
any kind, including any change of law or fact, that may occur after the date of
this opinion letter that might affect the opinions expressed herein.
Very truly yours,