1
EXHIBIT 4.4
[EXECUTION COUNTERPART]
CAMBREX CORPORATION
$400,000,000
CREDIT AGREEMENT
dated as of September 16, 1997
THE CHASE MANHATTAN BANK
Administrative Agent
THE FIRST NATIONAL BANK OF CHICAGO
Documentation Agent
CHASE SECURITIES INC.
Arranger
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS.................................. 1
1.1 Certain Definitions........................................... 1
1.2 Other Definitions; Rules of Construction...................... 14
ARTICLE II
THE COMMITMENTS AND THE ADVANCES........................ 15
2.1 Commitments of the Banks...................................... 15
2.2 Termination and Reduction of Commitments...................... 18
2.3 Fees.......................................................... 19
2.4 Disbursement of Revolving Credit Advances..................... 20
2.5 Conditions for Effective Date................................. 23
2.6 Further Conditions for Disbursement........................... 25
2.7 Subsequent Elections as to Borrowings......................... 25
2.8 Limitation of Requests and Elections.......................... 26
2.9 Minimum Amounts; Limitation on Number of Borrowings........... 27
2.10 Support and Collateral........................................ 27
ARTICLE III
PAYMENTS AND PREPAYMENTS OF ADVANCES...................... 27
3.1 Principal Payments............................................ 27
3.2 Interest Payments............................................. 28
3.3 Letter of Credit Reimbursement Payments....................... 29
3.4 Payment Method................................................ 31
3.5 No Setoff or Deduction........................................ 32
3.6 Payment on Non-Business Day; Payment Computations............. 32
3.7 Additional Costs.............................................. 33
3.8 Illegality and Impossibility.................................. 34
3.9 Indemnification............................................... 35
3.10 Substitution of Banks......................................... 35
3.11 Evidence of Debt.............................................. 36
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES......................... 37
4.1 Corporate Existence and Power................................. 37
4.2 Corporate Authority........................................... 37
4.3 Binding Effect................................................ 37
4.4 Subsidiaries.................................................. 37
4.5 Litigation.................................................... 38
4.6 Financial Condition........................................... 38
4.7 Use of Advances............................................... 38
4.8 Consents, Etc................................................. 39
4.9 Taxes......................................................... 39
4.10 Title to Properties........................................... 39
4.11 ERISA......................................................... 39
4.12 Disclosure.................................................... 40
4.13 Environmental and Safety Matters.............................. 40
4.14 Intellectual Property......................................... 40
4.15 Investment Company Status..................................... 40
ARTICLE V
COVENANTS................................... 41
5.1 Affirmative Covenants......................................... 41
5.2 Negative Covenants............................................ 44
ARTICLE VI
DEFAULT.................................... 50
6.1 Events of Default............................................. 50
6.2 Remedies...................................................... 52
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE BANKS..................... 53
7.1 Appointment and Authorization................................. 53
7.2 Administrative Agent and Affiliates........................... 54
7.3 Scope of Administrative Agent's Duties........................ 54
7.4 Reliance by Administrative Agent.............................. 54
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7.5 Default....................................................... 55
7.6 Liability of Administrative Agent............................. 55
7.7 Nonreliance on Administrative Agent and Other Banks........... 55
7.8 Indemnification............................................... 56
7.9 Resignation or Removal of Administrative Agent................ 56
7.10 Replacement of the Issuing Bank............................... 57
7.11 Sharing of Payments........................................... 57
7.12 Documentation Agent........................................... 58
ARTICLE VIII
MISCELLANEOUS................................. 58
8.1 Amendments, Etc............................................... 58
8.2 Notices....................................................... 59
8.3 No Waiver By Conduct; Remedies Cumulative..................... 60
8.4 Reliance on and Survival of Various Provisions................ 60
8.5 Expenses; Indemnification..................................... 60
8.6 Successors and Assigns........................................ 62
8.7 Counterparts.................................................. 64
8.8 Governing Law; Jurisdiction; Consent to Service of Process.... 64
8.9 Table of Contents and Headings................................ 65
8.10 Construction of Certain Provisions............................ 65
8.11 Integration and Severability.................................. 65
8.12 Waiver of Jury Trial.......................................... 65
8.13 Additional Banks.............................................. 66
SCHEDULES
Schedule 2.1 Commitments
Schedule 4.4 Subsidiaries
Schedule 4.5 Litigation
Schedule 4.14 Intellectual Property
Schedule 5.2(d) Indebtedness
Schedule 5.2(e) Liens
Schedule 5.2(k) Investments, Loans and Advances
Schedule 5.2(n) Contingent Liabilities
EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Guaranty
Exhibit C Form of Pledge Agreement
Exhibit D-1 Form of Opinion of General Counsel of the Company
Exhibit D-2 Form of Opinion of Special New York Counsel to the Company
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Exhibit E Form of Opinion of Special New York Counsel to Chase
Exhibit F Environmental Certificate
Exhibit G Form of Assumption Agreement
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THIS CREDIT AGREEMENT, dated as of September 16, 1997 (this
"Agreement"), is by and among Cambrex Corporation, a Delaware corporation (the
"Company"), the Banks party hereto and THE CHASE MANHATTAN BANK, as
administrative agent for the Banks (in such capacity, the "Administrative
Agent").
INTRODUCTION
The Company desires to obtain a revolving credit facility,
including letters of credit, in an aggregate principal amount not to exceed
$400,000,000 (or the Optional Currency Equivalent thereof) in order to provide
funds and other financial accommodations for acquisitions and for its other
corporate purposes and the Banks are willing to establish such a credit facility
in favor of the Company on the terms and conditions herein set forth.
In consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. As used herein the following terms
shall have the following respective meanings:
"Acquired Entity" shall mean any business, assets or Person
subject to an Acquisition permitted under Section 5.2(g).
"Acquisition" shall mean any transaction, or any series of
related transactions, consummated after the date of this Agreement, by which the
Company and/or any of its Subsidiaries (a) acquires any going business or all or
substantially all of the assets of any corporation, partnership, joint venture
or other firm or any division of any corporation, partnership, joint venture or
other firm or the right to use or manage or otherwise exploit any such business
or assets, whether through purchase or lease of assets, merger or otherwise, (b)
directly or indirectly acquires control of at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors or (c) directly or indirectly acquires control of a
majority ownership interest in any partnership, joint venture or other firm. The
terms "Acquire" and "Acquired" used as a verb shall have a correlative meaning.
"Advance" shall mean any Loan and any Letter of Credit
Advance.
"Administrative Questionnaire" shall mean an administrative
questionnaire in a form supplied by the Administrative Agent.
Credit Agreement
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"Affiliate", when used with respect to any person, shall mean
any other person which, directly or indirectly, Controls or is Controlled by or
is under common Control with such person.
"Applicable Lending Office" shall mean, with respect to any
Advance made by any Bank or with respect to such Bank's Commitment, the office
of such Bank or of any Affiliate of such Bank located at the address specified
as the applicable lending office for such Bank set forth in its Administrative
Questionnaire or any other office or Affiliate of such Bank or of any Affiliate
of such Bank hereafter selected and notified to the Company and the
Administrative Agent by such Bank.
"Applicable Margin" shall mean, with respect to any Floating
Rate Loan, Eurocurrency Rate Loan and facility fee, as the case may be, the
applicable percentage set forth in the table below as adjusted on the date on
which the financial statements and compliance certificate required pursuant to
Section 5.1(d) are delivered to the Banks and shall remain in effect until the
next change to be effected pursuant to this definition, provided, that, if any
financial statements referred to above are not delivered within the time period
specified above, then, until such financial statements are delivered, the ratio
of Funded Indebtedness to Cash Flow as of the end of the fiscal quarter that
would have been covered thereby shall for the purposes of this definition be
deemed to be greater than 3.5 to 1.0:
=========================================================================================================
Funded Indebtedness to Cash Flow Floating Rate Loan Eurocurrency Rate Loan Facility Fee
---------------------------------------------------------------------------------------------------------
Less than 2.0:1.0 0% 0.225% 0.15%
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Greater than or equal to 2.0:1.0 but less 0% 0.325% 0.175%
than 3.0:1.0
---------------------------------------------------------------------------------------------------------
Greater than or equal to 3.0:1.0 but less 0% 0.425% 0.20%
than 3.5:1.0
---------------------------------------------------------------------------------------------------------
Greater than or equal to 3.5:1.0 0% 0.50% 0.25%
=========================================================================================================
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Bank and an assignee (with the consent of any party
whose consent is required by Section 8.6), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the Administrative
Agent.
"Banks" shall mean the Banks set forth on the signature pages
hereto and any other Person that shall become a party hereto pursuant to an
Assignment and Acceptance, other than any such Person who ceases to be a party
hereto pursuant to an Assignment and Acceptance. Unless the context otherwise
requires, the term "Banks" includes the Swing Line Bank.
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"Borrowing" shall mean the aggregation of Advances, including
each Letter of Credit Advance, of the Banks to be made to the Company, or
continuations and conversions of Loans, made pursuant to Article II on a single
date and, in the case of any Loans, for a single Eurocurrency Interest Period or
Fixed Rate Interest Period, which Borrowings may be classified for purposes of
this Agreement by reference to the type of Loans or the type of Advances
comprising the related Borrowing, e.g., a "Eurocurrency Rate Borrowing" is a
Borrowing comprised of Eurocurrency Rate Loans, a "Fixed Rate Borrowing" is a
Borrowing comprised of Fixed Rate Loans and a "Letter of Credit Borrowing" is an
Advance comprised of a single Letter of Credit.
"Business Day" shall mean any day that is not a Saturday,
Sunday or other day on which commercial banks in New York City are authorized or
required by law to remain closed.
"Capital Lease" of any person shall mean any lease which, in
accordance with Generally Accepted Accounting Principles, is or should be
capitalized on the books of such person.
"Cash Flow" of any person shall mean, as of the end of any
fiscal quarter, net income of such person plus all income taxes of such person,
all interest paid or payable by such person on Indebtedness of such person
(including the portion of all obligations under Capital Leases constituting
interest), the amount of depreciation and amortization expense of such person,
provided that, if during any period for which Cash Flow is being determined, the
Company or any of its Subsidiaries shall have made an Acquisition, Cash Flow
shall be determined for purposes of this Agreement on a pro forma basis for such
period as if such Acquisition had been made or consummated on the first day of
such period.
"Change in Control" shall mean (a) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof), of shares representing more than 30% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Company;
(b) occupation of a majority of the seats (other than vacant seats) on the board
of directors of the Company by Persons who were neither (i) nominated by the
board of directors of the Company nor (ii) appointed by directors so nominated;
or (c) the acquisition of direct or indirect Control of the Company by any
Person or group.
"Chase" shall mean The Chase Manhattan Bank.
"C/L/C" shall mean any commercial letter of credit issued by
the Issuing Bank hereunder.
Credit Agreement
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"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations thereunder.
"Commitment" shall mean, with respect to each Bank, the
commitment of such Bank to make Loans, and to participate in Letter of Credit
Advances made through the Administrative Agent pursuant to Section 2.1, in an
aggregate principal amount not exceeding at any time the commitment amount for
such Bank set forth on Schedule 2.1 hereto, as such amount may be reduced from
time to time pursuant to Section 2.2 and after any adjustments for any
Assignments and Acceptances pursuant to Section 8.6.
"Competitive Bid" shall mean an offer by a Bank to make a
Competitive Loan in accordance with Section 2.1(c).
"Competitive Bid Margin" shall mean, with respect to any
Competitive Loan that is a Eurocurrency Rate Loan, the marginal rate of
interest, if any, to be added to or subtracted from the Eurocurrency Base Rate
to determine the rate of interest applicable to such Competitive Loan, as
specified by the Bank making such Competitive Loan in its related Competitive
Bid.
"Competitive Bid Rate" shall mean, with respect to any
Competitive Bid, (a) the Competitive Bid Margin added to or subtracted from the
Eurocurrency Base Rate or (b) the Fixed Rate, as applicable, in each case as
offered by the Bank making such Competitive Bid.
"Competitive Bid Request" shall mean a request by the Company
for Competitive Bids in accordance with Section 2.1(c).
"Competitive Loan" shall mean any borrowing under Section
2.1(c).
"Consolidated" or "consolidated" shall mean, when used with
reference to any financial term in this Agreement, the aggregate for two or more
persons of the amounts signified by such term for all such persons determined on
a consolidated basis in accordance with Generally Accepted Accounting
Principles.
"Contingent Liabilities" of any person shall mean, as of any
date, all contingent obligations of such person or of others for which such
person is contingently liable, as obligor, guarantor or in any other capacity,
or in respect of which obligations such person assures a creditor against loss
or agrees to take any action to prevent any such loss (other than endorsements
of negotiable instruments for collection in the ordinary course of business),
including without limitation all reimbursement obligations of such person in
respect of any letters of credit, surety bonds or similar obligations and all
obligations of such person to advance funds to, or to purchase assets, property
or services from, any other person in order to maintain the financial condition
of such other person.
Credit Agreement
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"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Cumulative Net Income" of any person shall mean, as of any
date, the net income (after deduction for income and other taxes of such person
determined by reference to income or profits of such person) for the period
commencing on the specified date through the end of the most recently completed
fiscal quarter of such person (but without reduction for any net loss incurred
for any completed fiscal year during such period), taken as one accounting
period, all as determined in accordance with Generally Accepted Accounting
Principles.
"Default" shall mean any of the events or conditions described
in Section 6.1 which might become an Event of Default with notice or lapse of
time or both.
"Deutsche Marks" shall mean the lawful money of the Federal
Republic of Germany.
"Dollar Equivalent" shall mean, as of any date of
determination with respect to any Loan denominated in an Optional Currency, the
amount of Dollars that would be required to purchase the amount of the Optional
Currency of such Loan based on the spot selling rate at which the principal
London office of Chase offers to sell such Optional Currency for Dollars in the
London foreign exchange market at approximately 11:00 a.m. London time for
delivery two Eurocurrency Business Days later.
"Dollars" and "$" shall mean the lawful money of the United
States of America.
"Effective Date" shall mean the date on which the conditions
specified in Section 2.5 are satisfied (or waived in accordance with Section
8.1).
"Environmental Certificate" shall mean an appropriately
completed environmental certificate in the form of Exhibit F attached hereto,
certified as true and correct as of the date thereof by an executive officer of
the Company acceptable to the Administrative Agent.
"Environmental Laws" at any date shall mean all provisions of
law, statute, ordinances, rules, regulations, judgments, writs, injunctions,
decrees, orders, awards and standards promulgated by the government of the
United States of America or any foreign government or by any state, province,
municipality or other political subdivision thereof or therein or by any court,
agency, instrumentality, regulatory authority or commission of any of the
foregoing concerning the protection of, or regulating the discharge of
substances into, the environment.
Credit Agreement
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"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations thereunder, and any
successor statute of similar import.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) which, together with the Company or any Subsidiary of the
Company, would be treated as a single employer under Section 414 of the Code.
"Eurocurrency Base Rate" shall mean, with respect to any
Eurocurrency Rate Loan in any Permitted Currency for the related Eurocurrency
Interest Period:
(a) the arithmetic mean, as calculated by the Administrative
Agent, of the respective rates per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rates appearing on the
Screen at approximately 11:00 a.m. London time (or as soon thereafter
as practicable) two Eurocurrency Business Days prior to the first day
of the Eurocurrency Interest Period for such Loan as LIBOR for such
Permitted Currency having a term comparable to such Eurocurrency
Interest Period; or
(b) if the Screen shall cease to report such LIBOR or, in the
reasonable judgment of the Required Banks, shall cease accurately to
reflect such LIBOR (as reported by any publicly available source of
similar market data selected by the Required Banks that, in the
reasonable judgment of the Required Banks, accurately reflects LIBOR
for such Permitted Currency), the Eurocurrency Base Rate shall mean,
with respect to such Eurocurrency Rate Loan for such Eurocurrency
Interest Period, the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%), as determined by the Administrative Agent,
quoted by the Reference Banks at approximately 11:00 a.m. London time
(or as soon thereafter as practicable) two Eurocurrency Business Days
prior to the first day of the Eurocurrency Interest Period for such
Eurocurrency Loan for the offering by the Reference Banks to leading
banks in the London (or, in the case of Loans denominated in Pounds
Sterling, Paris) interbank market of deposits denominated in such
Permitted Currency having a term comparable to such Eurocurrency
Interest Period and in an amount equal to $1,000,000 (or the Optional
Currency Equivalent thereof).
"Eurocurrency Business Day" shall mean, with respect to any
Eurocurrency Rate Loan, a day which is both a Business Day and a day on which
dealings in Dollar deposits or the relevant Permitted Currency are carried out
in the relevant interbank market.
Credit Agreement
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"Eurocurrency Interest Period" shall mean, with respect to any
Eurocurrency Rate Loan, the period commencing on the day such Eurocurrency Rate
Loan is made or a Floating Rate Loan is converted to a Eurocurrency Rate Loan
and ending on the date one, two, three or six months thereafter, as the Company
may elect under Section 2.4 or 2.7, and each subsequent period commencing on the
last day of the immediately preceding Eurocurrency Interest Period and ending on
the date one, two, three or six months thereafter, as the Company may elect
under Section 2.4 or 2.7, provided, however, that (a) any Eurocurrency Interest
Period which commences on the last Eurocurrency 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 Eurocurrency
Business Day of the appropriate subsequent calendar month, (b) each Eurocurrency
Interest Period which would otherwise end on a day which is not a Eurocurrency
Business Day shall end on the next succeeding Eurocurrency Business Day or, if
such next succeeding Eurocurrency Business Day falls in the next succeeding
calendar month, on the next preceding Eurocurrency Business Day, and (c) no
Eurocurrency Interest Period which would end after the Termination Date shall be
permitted.
"Eurocurrency Rate" shall mean, with respect to any
Eurocurrency Rate Loan in any Permitted Currency for the related Eurocurrency
Interest Period, the per annum rate that is equal to the sum of:
(a) the Applicable Margin (if such Eurocurrency Rate Loan is a
Revolving Credit Loan) or the Competitive Bid Margin (if such Eurocurrency Rate
Loan is a Competitive Loan), plus
(b) the rate per annum obtained by dividing (i) the
Eurocurrency Base Rate by (ii) an amount equal to one minus the stated maximum
rate (expressed as a decimal) of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
that is specified on the first day of such Eurocurrency Interest Period by the
Board of Governors of the Federal Reserve System (or any successor agency
thereto) for determining the maximum reserve requirement with respect to
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of such Board) maintained by a member bank of such System;
all as conclusively determined by the Administrative Agent, such sum to be
rounded up, if necessary, to the nearest whole multiple of 1/100 of 1%.
"Eurocurrency Rate Loan" shall mean any Loan which bears
interest at a rate determined by reference to the Eurocurrency Rate.
"Event of Default" shall mean any of the events or conditions
described in Section 6.1.
Credit Agreement
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"Existing Credit Agreement" shall mean the Loan Agreement
dated as of September 21, 1994, as amended, among the Company, the banks named
therein, and The First National Bank of Chicago, as agent.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fixed Rate" shall mean, with respect to any Competitive Loan
(other than a Competitive Loan that is a Eurocurrency Rate Loan), the fixed rate
of interest per annum specified by the Bank making such Competitive Loan in its
related Competitive Bid.
"Fixed Rate Interest Period" shall mean, with respect to any
Fixed Rate Loan, the interest period specified in the Competitive Bid Request
therefor, which shall be not less than seven days or more than 360 days.
"Fixed Rate Loan" shall mean a Competitive Loan bearing
interest at a Fixed Rate.
"Floating Rate" shall mean, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Floating Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Floating Rate Loan" shall mean any Loan which bears interest
at the Floating Rate.
"Foreign Subsidiary" shall mean any Subsidiary that is
organized as a corporation under the laws of a jurisdiction other than the
United States of America or a State thereof.
"French Francs" shall mean the lawful money of the Republic of
France.
"Funded Indebtedness" of any person shall mean, as of any
date, all interestbearing Indebtedness (including all obligations under Capital
Leases and all Subordinated Debt) of such person.
Credit Agreement
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"Generally Accepted Accounting Principles" shall mean
generally accepted accounting principles applied on a basis consistent with that
reflected in the financial statements referred to in Section 4.6.
"Guaranty" shall mean the guaranty entered into by each of the
Guarantors for the benefit of the Administrative Agent and the Banks pursuant to
this Agreement, in substantially the form of Exhibit B hereto, as amended or
modified from time to time.
"Guarantor" shall mean each Subsidiary of the Company and each
person otherwise becoming a Subsidiary of the Company, or otherwise entering
into a Guaranty, from time to time, but shall not include any Foreign Subsidiary
of the Company.
"Hedging Agreements" shall mean, for any Person, an interest
rate swap, cap or collar agreement or similar arrangement between such Person
and one or more financial institutions providing for the transfer or mitigation
of interest or currency risks either generally or under specific contingencies.
"Indebtedness" of any person shall mean, as of any date, (a)
all obligations of such person for borrowed money, (b) all obligations of such
person as lessee under any Capital Lease, (c) all obligations which are secured
by any Lien existing on any asset or property of such person whether or not the
obligation secured thereby shall have been assumed by such person, (d) the
unpaid purchase price for goods, property or services acquired by such person,
except for trade accounts payable arising in the ordinary course of business
that are not past due within customary payment terms, (e) all obligations of
such person to purchase goods, property or services where payment therefor is
required regardless of whether delivery of such goods or property or the
performance of such services is ever made or tendered (generally referred to as
"take or pay contracts"), (f) all liabilities of such person in respect of
Unfunded Benefit Liabilities under any Plan of such person or any ERISA
Affiliate, (g) all obligations of such person in respect of any Hedging
Agreements (valued in an amount equal to the highest termination payment, if
any, that would be payable by such person upon termination for any reason on the
date of determination), and (h) all obligations of others similar in character
to those described in clauses (a) through (g) of this definition for which such
person is contingently liable, as obligor, guarantor, surety or in any other
capacity, or in respect of which obligations such person assures a creditor
against loss or agrees to take any action to prevent any such loss (other than
endorsements of negotiable instruments for collection in the ordinary course of
business), including without limitation all reimbursement obligations of such
person in respect of letters of credit, surety bonds or similar obligations and
all obligations of such person to advance funds to, or to purchase assets,
property or services from, any other person in order to maintain the financial
condition of such other person.
"Interest Expense" shall mean, for any period, the sum, for
any Person and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with
Credit Agreement
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Generally Accepted Accounting Principles), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Leases but excluding any capitalized
financing costs) accrued or capitalized during such period (whether or not
actually paid during such period), but excluding any non-cash interest plus (b)
the net amount payable (or minus the net amount receivable) in respect of any
Hedging Agreements during such period (whether or not actually paid or received
during such period), provided that, if during any period for which Interest
Expense is being determined, the Company or any of its Subsidiaries shall have
made an Acquisition, Interest Expense shall be determined for purposes of this
Agreement on a pro forma basis for such period as if the such Acquisition had
been made or consummated on the first day of such period. For purposes hereof,
the aggregate amount of upfront or one-time fees or expenses payable in respect
of any Hedging Agreements shall be amortized over the life of such Hedging
Agreements in equal installments, and only the portion thereof so amortized
during any period shall be treated as "Interest Expense" for such period.
"Interest Payment Date" shall mean (a) with respect to any
Eurocurrency Rate Loan, the last day of each Eurocurrency Interest Period with
respect to such Eurocurrency Rate Loan and, in the case of any Eurocurrency
Interest Period exceeding three months, those days that occur during such
Eurocurrency Interest Period at intervals of three months after the first day of
such Eurocurrency Interest Period, (b) with respect to any Fixed Rate Loan, the
last day of the Fixed Rate Interest Period with respect to such Fixed Rate Loan
and, in the case of any Fixed Rate Interest Period exceeding three months, those
days that occur during such Fixed Rate Interest Period at intervals of three
months after the first day of such Fixed Rate Interest Period, and (c) in all
other cases, the last Business Day of each March, June, September and December
occurring after the date hereof, commencing with the first such Business Day
occurring after the date of this Agreement.
"Issuing Bank" shall mean Chase, in its capacity as the issuer
of Letters of Credit hereunder, and its successors in such capacity as provided
in Section 7.10.
"Italian Lira" shall mean the lawful money of the Republic of
Italy.
"Japanese Yen" shall mean the lawful money of Japan.
"Letter of Credit" shall mean an S/L/C or C/L/C having a
stated expiry date or a date upon which a draft thereunder must be reimbursed
not later than twelve months after the date of issuance and not later than the
fifth Business Day before the Termination Date, issued by the Issuing Bank for
the account of the Company under an application and related documentation
acceptable to the Issuing Bank requiring, among other things, immediate
reimbursement by the Company to the Issuing Bank in respect of all drafts or
other demands for payment honored thereunder and all expenses paid or incurred
by the Issuing Bank related thereto.
Credit Agreement
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"Letter of Credit Advance" shall mean any issuance of a Letter
of Credit under Section 2.4 made pursuant to Section 2.1 in which each Bank
acquires a pro rata risk participation (based on such Bank's Commitment).
"Letter of Credit Documents" shall have the meaning ascribed
thereto in Section 3.3(b).
"LIBOR" shall mean, for any Permitted Currency, the rate at
which deposits in such Permitted Currency are offered to leading banks in the
London (or, in the case of Pounds Sterling, Paris) interbank market.
"Lien" shall mean any pledge, assignment, hypothecation,
mortgage, security interest, deposit arrangement, option, conditional sale or
title retaining contract, sale and leaseback transaction, financing statement
filing, lessor's or lessee's interest under any lease, subordination of any
claim or right, or any other type of lien, charge, encumbrance, preferential
arrangement or other claim or right.
"Loan" shall mean any Revolving Credit Loan, any Competitive
Loan and any Swing Line Loan. Any Revolving Credit Loan or portion thereof may
also be denominated as a Floating Rate Loan or a Eurocurrency Rate Loan, and
such Floating Rate Loans and such Eurocurrency Rate Loans are referred to herein
as "types" of Loans.
"Multiemployer Plan" shall mean any "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"Net Cash Proceeds" shall mean, in connection with any
issuance or sale of any equity securities or debt securities or instruments or
the incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of investment banking fees, reasonable and documented attorneys'
fees, accounting fees, underwriting discounts and commissions and other
customary fees and other costs and expenses actually incurred in connection
therewith.
"Net Worth" of any person shall mean, as of any date, total
consolidated assets of such person minus total consolidated liabilities of such
person.
"Optional Currency" shall mean (a) Deutsche Marks, French
Francs, Italian Lira, Japanese Yen and Pounds Sterling and (b) any other
currency which is approved by all of the Banks, so long as at such time such
currency (i) is dealt with in the London interbank market (or, in the case of
Pounds Sterling, in the Paris interbank market) and (ii) is freely transferable
and convertible into Dollars in the London foreign exchange market.
"Optional Currency Equivalent" shall mean, with respect to any
amount in Dollars, the amount of Optional Currency that could be purchased with
such amount of Dollars
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using the reciprocal of the foreign exchange rate(s) specified in the definition
of the term "Dollar Equivalent", as determined by the Administrative Agent.
"Original Dollar Amount" shall mean, with respect to any Loan,
the original principal amount of such Loan (or the Dollar Equivalent thereof in
the case of a Loan made in an Optional Currency) specified in the related
request therefor given by the Company pursuant to Section 2.4(a), as such amount
is reduced by payments of principal made in respect of such Loan in Dollars (or
the Dollar Equivalent thereof in the case of a payment made in an Optional
Currency) and (b) as such amount is adjusted pursuant to Section 3.1(c).
"Overdue Rate" shall mean (a) in respect of principal of
Floating Rate Loans, a rate per annum that is equal to the sum of 2% per annum
plus the Floating Rate, (b) in respect of principal of Eurocurrency Rate Loans,
a rate per annum that is equal to the sum of 2% per annum plus the per annum
rate in effect thereon until the end of the then current Eurocurrency Interest
Period for such Loan and, thereafter, a rate per annum that is equal to the sum
of 2% per annum plus the Floating Rate, and (c) in respect of other amounts
payable by the Company hereunder (other than interest), a per annum rate that is
equal to the sum of 2% per annum plus the Floating Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and
any entity succeeding to any or all of its functions under ERISA.
"Permitted Currency" shall mean Dollars and any Optional
Currency.
"Permitted Liens" shall mean Liens permitted by Section
5.2(e).
"Person" or "person" shall include an individual, a
corporation, an association, a partnership, a limited liability company, a trust
or estate, a joint stock company, an unincorporated organization, a joint
venture, a trade or business (whether or not incorporated), a government
(foreign or domestic) and any agency or political subdivision thereof, or any
other entity.
"Plan" shall mean any pension plan (other than a Multiemployer
Plan) subject to Title IV of ERISA or to the minimum funding standards of
Section 412 of the Code which has been established or maintained by the Company,
any Subsidiary of the Company or any ERISA Affiliate, or by any other person if
the Company, any Subsidiary of the Company or any ERISA Affiliate could have
liability with respect to such pension plan.
"Pledge Agreement" shall mean the pledge agreement
substantially in the form attached hereto as Exhibit C, as amended or modified
from time to time, to be entered into by the Company for the benefit of the
Administrative Agent and the Banks on the Effective Date pursuant to Section
2.10.
Credit Agreement
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"▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇" shall mean the lawful money of the United
Kingdom.
"Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Prohibited Transaction" shall mean any transaction involving
any Plan which is proscribed by Section 406 of ERISA or Section 4975 of the
Code.
"Purchase Price" shall mean, with respect to any Acquisition
under Section 5.2(g), an amount equal to the sum of (i) the aggregate
consideration, whether cash, property or securities (including, without
limitation, any Indebtedness incurred pursuant to Section 5.2(d)), paid or
delivered by the Company and its Subsidiaries (but excluding any fees or
expenses payable) in connection with such acquisition plus (ii) the aggregate
amount of liabilities of the Acquired Entity (net of current assets of the
Acquired Entity) that would be reflected on a balance sheet (if such were to be
prepared) of the Company and its Subsidiaries after giving effect to such
acquisition.
"Reference Banks" shall mean Chase and The First National Bank
of Chicago.
"Register" shall have the meaning ascribed thereto in Section
8.6(c).
"Reportable Event" shall mean a reportable event as described
in Section 4043(b) of ERISA including those events as to which the thirty (30)
day notice period is waived under Part 2615 of the regulations promulgated by
the PBGC under ERISA.
"Required Banks" shall mean, at any time, Banks having
Revolving Credit Advances and unused Commitments representing at least 51% of
the sum of the total Revolving Credit Advances and unused Commitments at such
time; provided that, for purposes of declaring the Loans to be due and payable
pursuant to Article VI, and for all purposes after the Loans become due and
payable pursuant to Article VI or the Commitments expire or terminate, the
outstanding Competitive Loans of the Banks shall be included in their respective
Revolving Credit Advances in determining the Required Banks.
"Revolving Credit Advance" shall mean any Revolving Credit
Loan, any Swing Line Loan and any Letter of Credit Advance.
"Revolving Credit Loan" shall mean any borrowing under Section
2.4 made pursuant to Section 2.1(a).
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"Screen" shall mean, for any Permitted Currency, the relevant
display page for LIBOR for such Permitted Currency (as determined by the
Administrative Agent) on the Dow ▇▇▇▇▇ Markets Service; provided that, if the
Administrative Agent determines that there is no such relevant display page for
LIBOR for such Permitted Currency, "Screen" shall mean the relevant display page
for LIBOR for such Permitted Currency (as determined by the Administrative
Agent) on the ▇▇▇▇▇▇ Monitor Money Rates Service.
"S/L/C" shall mean any standby letter of credit issued by the
Issuing Bank hereunder.
"Subordinated Debt" of any person shall mean, as of any date,
that Indebtedness of such person for borrowed money which is expressly
subordinate and junior in right and priority of payment to the Loans and other
Indebtedness of such person to the Banks in manner and by agreement satisfactory
in form and substance to the Company, the Required Banks and the Administrative
Agent.
"Subsidiary" of any person shall mean any other person
(whether now existing or hereafter organized or acquired) in which (other than
directors qualifying shares required by law) at least a majority of the
securities or other ownership interests of each class having ordinary voting
power or analogous right (other than securities or other ownership interests
which have such power or right only by reason of the happening of a
contingency), at the time as of which any determination is being made, are
owned, beneficially and of record, by such person or by one or more of the other
Subsidiaries of such person or by any combination thereof. Unless otherwise
specified, reference to "Subsidiary" shall mean a Subsidiary of the Company.
"Support Documents" shall mean the Pledge Agreement, the
Guaranties and all other agreements and documents delivered pursuant to this
Agreement or otherwise entered into by any person to secure the obligations of
the Company under this Agreement.
"Swing Line Bank" shall mean Chase, in its capacity as the
lender of Swing Line Loans hereunder.
"Swing Line Facility" shall have the meaning specified in
Section 2.1(b).
"Swing Line Loan" shall mean any borrowing under Section 2.4
made pursuant to Section 2.1(b).
"Termination Date" shall mean the earlier to occur of (a)
September 16, 2002, or such later date to which the Termination Date is extended
pursuant to Section 2.4(d), or (b) the date on which the Commitment shall be
terminated pursuant to Section 2.2 or 6.2.
Credit Agreement
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"Unfunded Benefit Liabilities" shall mean, with respect to any
Plan as of any date, the amount of the unfunded benefit liabilities determined
in accordance with Section 4001(a)(18) of ERISA.
1.2 Other Definitions; Rules of Construction. As used herein,
the terms "Administrative Agent", "Company" and "this Agreement" shall have the
respective meanings ascribed thereto in the introductory paragraph of this
Agreement. Such terms, together with the other terms defined in Section 1.1,
shall include both the singular and the plural forms thereof and shall be
construed accordingly. All computations required hereunder and all financial
terms used herein shall be made or construed in accordance with Generally
Accepted Accounting Principles unless such principles are inconsistent with the
express requirements of this Agreement. Use of the terms "herein", "hereof", and
"hereunder" shall be deemed references to this Agreement in its entirety and not
to the Section or clause in which such term appears. References to "Sections"
and "subsections" shall be to Sections and subsections, respectively, of this
Agreement unless otherwise specifically provided.
ARTICLE II
THE COMMITMENTS AND THE ADVANCES
2.1 Commitments of the Banks.
(a) Revolving Credit Advances. Each Bank agrees, for itself
only, subject to the terms and conditions of this Agreement, to make Revolving
Credit Loans to the Company (in Dollars or, in the case of any Eurocurrency Rate
Loan, in any other Permitted Currency) pursuant to Section 2.4 and Section 3.3
and to participate in Letter of Credit Advances to the Company pursuant to
Section 2.4, from time to time from and including the Effective Date to but
excluding the Termination Date, not to exceed in aggregate principal amount the
amount of its Commitment, provided that the aggregate Letter of Credit Advances
outstanding at any time may not exceed 15% of the aggregate amount of all
Commitments, and provided further that at no time shall the sum of the total
Revolving Credit Advances plus the aggregate principal amount of Competitive
Loans exceed the aggregate Commitments hereunder.
(b) Swing Line Loan. (i) The Company may request the Swing
Line Bank to make, and the Swing Line Bank may in its sole discretion (provided
that the requirements of Section 2.6 are complied with by the Company with
respect to such request) make, Swing Line Loans to the Company (in Dollars or,
in the case of any Eurocurrency Rate Loan, in any other Permitted Currency) from
time to time on any Business Day (but limited to one such Advance per Business
Day) during the period from the Effective Date until the Termination Date in an
aggregate principal amount not to exceed at any date the lesser of (A)
$10,000,000 (the "Swing Line Facility") and (B) the aggregate of the unused
portions of the Commitments of the Banks as of such date. Each Bank's Commitment
shall be deemed utilized by an amount equal to such Bank's pro rata share (based
on such Bank's Commitment) of each Swing Line Loan for purposes
Credit Agreement
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of determining the amount of Revolving Credit Advances required to be made by
such Bank. Within the limits of the Swing Line Facility, so long as the Swing
Line Bank, in its sole discretion, elects to make Swing Line Loans, the Company
may borrow and reborrow under this Section 2.1(b)(i).
(ii) The Swing Line Bank may at any time in its sole and
absolute discretion require that any Swing Line Loan be refunded by a Revolving
Credit Loan which is a Floating Rate Loan, and upon notice thereof by the Swing
Line Bank (through the Administrative Agent) to the Company and the Banks, the
Company shall be deemed to have requested a Revolving Credit Loan bearing
interest at the Floating Rate in an amount equal to the amount of any such Swing
Line Loan, and such Revolving Credit Loan shall be made to refund such Swing
Line Loan. Each Bank shall be absolutely and unconditionally obligated (except
as set forth in Section 2.1(b)(i)) to fund its pro rata share (based on such
Bank's Commitment) of such Revolving Credit Loan and such obligation shall not
be affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank or the Company
or any of its Subsidiaries may have against the Swing Line Bank, the Company or
any of its Subsidiaries or anyone else for any reason whatsoever; (ii) the
occurrence or continuance of a Default or an Event of Default; (iii) any adverse
change in the condition (financial or otherwise) of the Company or any of its
Subsidiaries; (iv) any breach of this Agreement by the Company or any of its
Subsidiaries or any other Bank; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing (including the
Company's failure to satisfy any conditions contained in Article II or any other
provision of this Agreement).
(c) Competitive Loans. (i) Subject to the terms and conditions
set forth herein, from time to time from and including the Effective Date to but
excluding the Termination Date, the Company may request Competitive Bids and may
(but shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans in Dollars; provided that the sum of the total Revolving
Credit Advances plus the aggregate principal amount of outstanding Competitive
Loans at any time shall not exceed the aggregate Commitments hereunder. To
request Competitive Bids, the Company shall notify the Administrative Agent of
such request by telephone, in the case of a Competitive Bid for a Eurocurrency
Rate Loan, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed borrowing and, in the case of a Competitive Bid
for a Fixed Rate Loan, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed borrowing; provided that the
Company may submit up to (but not more than) two Competitive Bid Requests on the
same day, but a Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request, unless any and all
such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved
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by the Administrative Agent and signed by the Company. Each such telephonic and
written Competitive Bid Request shall specify the following information:
(A) the aggregate amount of the requested Borrowing;
(B) the date of such Borrowing, which shall be a Business Day;
(C) whether such Borrowing is to be a Eurocurrency Rate
Borrowing or a Fixed Rate Borrowing;
(D) the Eurocurrency Interest Period or Fixed Rate Interest
Period, as the case may be, to be applicable to such Borrowing, which,
in the case of a Eurocurrency Rate Loan, shall be a period contemplated
by the definition of the term "Eurocurrency Interest Period", or, in
the case of a Fixed Rate Loan, shall be a period contemplated by the
definition of "Fixed Rate Interest Period"; and
(E) the location and number of the Company's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.4(a)(iii).
Promptly following receipt of a Competitive Bid Request in
accordance with this Section, the Administrative Agent shall notify the Banks of
the details thereof by telecopy, inviting the Banks to submit Competitive Bids.
(ii) Each Bank may (but shall not have any obligation to) make
one or more Competitive Bids to the Company in response to a Competitive Bid
Request. Each Competitive Bid by a Bank must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurocurrency Rate Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30 a.m.,
New York City time, on the proposed date of such borrowing. Competitive Bids
that do not conform substantially to the form approved by the Administrative
Agent may be rejected by the Administrative Agent, and the Administrative Agent
shall notify the applicable Bank as promptly as practicable. Each Competitive
Bid shall specify (i) the principal amount (which shall be a minimum of
$5,000,000 and an integral multiple of $1,000,000 and which may equal the entire
principal amount of the borrowing requested by the Company) of the Competitive
Loan or Loans that the Bank delivering such Competitive Bid is willing to make,
(ii) the Competitive Bid Rate or Rates at which such Bank is prepared to make
such Loan or Loans (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) and (iii) the Eurocurrency Interest
Period or Fixed Rate Interest Period applicable to each such Loan and the last
day thereof.
Credit Agreement
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(iii) The Administrative Agent shall promptly notify the
Company by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Bank that shall have
made such Competitive Bid.
(iv) Subject only to the provisions of this paragraph, the
Company may accept or reject any Competitive Bid. The Company shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Rate Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed borrowing, and in the case of a Fixed Rate Borrowing, not later
than 11:00 a.m., New York City time, on the proposed date of the borrowing;
provided that (i) the failure of the Company to give such notice shall be deemed
to be a rejection of each Competitive Bid, (ii) the Company shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Company rejects
a Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by the Company shall not exceed the
aggregate amount of the requested borrowing specified in the related Competitive
Bid Request, (iv) to the extent necessary to comply with clause (iii) above, the
Company may accept Competitive Bids at the same Competitive Bid Rate in part,
which acceptance, in the case of multiple Competitive Bids at such Competitive
Bid Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000;
provided further that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (iv) above, such Competitive Loan
may be for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iv)
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
determined by the Company. A notice given by the Company pursuant to this
paragraph shall be irrevocable.
(v) The Administrative Agent shall promptly notify each
bidding Bank by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(vi) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Bank, it shall submit such Competitive Bid
directly to the Company at least one quarter of an hour earlier than the time by
which the other Banks are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (c)(ii) of this Section 2.1.
2.2 Termination and Reduction of Commitments. (a) The Company
shall have the right to terminate in whole or reduce in part any or all of the
Commitments at any time
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and from time to time, provided that (i) the Company shall give prior notice of
such termination or reduction to the Administrative Agent (which shall promptly
notify each Bank) specifying the amount and effective date thereof, (ii) each
partial reduction of the Commitments shall be in a minimum amount of $5,000,000
and in an integral multiple of $1,000,000 and shall reduce the Commitments of
all of the Banks proportionately, (iii) no such termination or reduction shall
be permitted with respect to any portion of the Commitments as to which a
request for an Advance pursuant to Section 2.4 is then pending, and (iv) any
such Commitment may not be terminated if any Advances are then outstanding and
may not be reduced below the principal amount of Advances then outstanding under
such Commitment. The Commitments or any portion thereof terminated or reduced
pursuant to this Section 2.2, whether optional or mandatory, may not be
reinstated.
(b) For purposes of this Agreement, a Letter of Credit Advance
(i) shall be deemed outstanding in an amount equal to the sum of the maximum
amount available to be drawn under the related Letter of Credit on or after the
date of determination and on or before the stated expiry date thereof plus the
amount of any draws under such Letter of Credit that have not been reimbursed as
provided in Section 3.3 and (ii) shall be deemed outstanding at all times on and
before such stated expiry date or such earlier date on which all amounts
available to be drawn under such Letter of Credit have been fully drawn, and
thereafter until all related reimbursement obligations have been paid pursuant
to Section 3.3. As provided in Section 3.3, upon each payment made by the
Issuing Bank in respect of any draft or other demand for payment under any
Letter of Credit, the amount of any Letter of Credit Advance outstanding
immediately prior to such payment shall be automatically reduced by the amount
of each Revolving Credit Loan deemed advanced in respect of the related
reimbursement obligation of the Company.
2.3 Fees. (a) The Company agrees to pay to each Bank a
facility fee on the daily amount of the Commitment of such Bank (whether used or
unused), for the period from the date of this Agreement to but excluding the
Termination Date, at a rate equal to the Applicable Margin; provided that, if
such Bank continues to have a participation interest in any Letter of Credit
Advance after its Commitment terminates, then such facility fee shall continue
to accrue on the daily amount of such Bank's participation in any such Letter of
Credit Advance from and including the date on which its Commitment terminates to
but excluding the date on which such Bank ceases to have a participation
interest in such Letter of Credit Advance. Accrued facility fees shall be
payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing on the first such Business Day occurring
after the date of this Agreement and on the Termination Date, provided that any
facility fees accruing after the date on which the Commitments terminate shall
be payable on demand.
(b) The Company agrees to pay (i) with respect to S/L/Cs, (A)
a fee to the Banks computed at the Applicable Margin then in effect with respect
to Eurocurrency Rate Loans of the maximum amount available to be drawn from time
to time under such S/L/C for the period from
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and including the date of issuance of such S/L/C to and including the stated
expiry date of such S/L/C, which fee shall be paid annually in advance at the
time such S/L/C is issued, and (B) an additional fee to the Issuing Bank for its
own account computed at the rate of 1/4 of 1% per annum of such maximum amount
for such period and (ii) with respect to C/L/Cs, (A) a fee to the Banks computed
at the rate of 1/4 of 1% per annum, which fees shall be paid at each time as any
C/L/C is presented or drawn upon, in whole or in part, and shall be computed
upon the amount of such C/L/C which is presented or drawn upon, in whole or in
part, and (B) an additional fee to the Issuing Bank for its own account computed
at the rate of 1/8 of 1% per annum, which fee shall be computed on the amount
and paid on the date(s) described in clause (ii)(A) above. Such fees are
nonrefundable and the Company shall not be entitled to any rebate of any portion
thereof if such Letter of Credit does not remain outstanding through its stated
expiry date or for any other reason. The Company further agrees to pay to the
Issuing Bank, on demand, such other customary administrative fees, charges and
expenses of the Issuing Bank in respect of the issuance, negotiation,
acceptance, amendment, transfer, expiry and payment of such Letter of Credit or
otherwise payable pursuant to the application and related documentation under
which such Letter of Credit is issued in accordance with a schedule of fees
provided by the Issuing Bank to the Company.
(c) The Company agrees to pay to the Administrative Agent an
agency fee for its services as Administrative Agent under this Agreement in such
amounts as may from time to time be agreed upon by the Company and the
Administrative Agent.
(d) The Company also agrees to pay to each Bank an extension
fee with respect to each extension of the Termination Date pursuant to Section
2.4(d) in an amount equal to 1/12 of 1% of the amount of the Commitment of such
Bank on the date of such extension, 50% of which fee shall be payable upon the
execution of the relevant extension agreement and the remaining 50% of which
shall be payable on earlier of (x) the first anniversary of the execution of
such extension agreement or (y) the termination of the Commitments.
2.4 Disbursement of Revolving Credit Advances. (a)(i) Except
with respect to Swing Line Loans, the Company shall give the Administrative
Agent notice of its request for each Revolving Credit Advance not later than
11:00 a.m. New York City time (A) three Eurocurrency Business Days prior to the
date such Advance is requested to be made if such Advance is to be made as a
Eurocurrency Rate Borrowing, (B) three Business Days prior to the date any
Letter of Credit Advance is requested to be made, and (C) on the Business Day
such Advance is requested to be made in all other cases, which notice shall
specify whether a Eurocurrency Rate Borrowing, a Floating Rate Borrowing, or a
Letter of Credit Advance is requested and, in the case of each requested
Eurocurrency Rate Borrowing, the Eurocurrency Interest Period to be initially
applicable to such Borrowing, and the Permitted Currency in which such Loan is
requested to be denominated and, in the case of each Letter of Credit Advance,
such information as may be necessary for the issuance thereof by the Issuing
Bank. The
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Administrative Agent shall promptly provide notice of such requested Revolving
Credit Advance to each Bank.
(ii) With respect to Swing Line Loans, the Company shall give
the Administrative Agent notice of its request for each Swing Line Loan not
later than 1:00 p.m. New York City time on the same Business Day any Swing Line
Loan is requested to be made. The Administrative Agent, not later than 12:00
noon New York City time the Business Day next succeeding the day such notice of
a Swing Line Loan is given, shall provide notice of each Swing Line Loan to each
Bank unless such Swing Line Loan is paid in full by the Company prior to the
time such notice is given.
(iii) Subject to the terms and conditions of this Agreement,
the proceeds of each such requested Advance shall be made available to the
Company by depositing the proceeds thereof, in the case of any Advance
denominated in Dollars, in immediately available funds, in an account maintained
and designated by the Company at the principal office of the Administrative
Agent and, in all other cases, in an account maintained and designated by the
Company at a bank acceptable to the Administrative Agent in the principal
financial center of the country issuing the Permitted Currency in which such
Loan is denominated or in such other reasonable place specified by the
Administrative Agent. Subject to the terms and conditions of this Agreement, the
Issuing Bank shall, on the date any Letter of Credit Advance is requested to be
made, issue the related Letter of Credit for the account of the Company.
Notwithstanding anything herein to the contrary, the Issuing Bank may decline to
issue any requested Letter of Credit on the basis that the beneficiary, the
purpose of issuance or the terms or the conditions of drawing are unacceptable
to it in its discretion.
(b) Each Bank, on the date any Revolving Credit Borrowing in
the form of a Loan (other than a Swing Line Loan) is required to be made, shall
make its pro rata share of such Revolving Credit Borrowing available in
immediately available, freely transferable, cleared funds for disbursement to
the Company pursuant to the terms and conditions of this Agreement, in the case
of any Revolving Credit Borrowing denominated in Dollars, at the principal
office of the Administrative Agent and, in all other cases, to the account of
the Administrative Agent (or any of its affiliates) at its branch or office or
correspondent bank designated for payments in the Permitted Currency in which
such Revolving Credit Borrowing is denominated or in such other reasonable place
specified by the Administrative Agent. Unless the Administrative Agent shall
have received notice from any Bank prior to the date such Borrowing is requested
to be made under this Section 2.4 that such Bank will not make available to the
Administrative Agent such Bank's pro rata portion of such Revolving Credit
Borrowing, the Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date such Revolving Credit
Borrowing is requested to be made in accordance with this Section 2.4. If and to
the extent such Bank shall not have so made such pro rata portion available to
the Administrative Agent, the Administrative Agent may (but shall not be
obligated to) make such amount available to the Company, and such Bank and the
Company severally agree to pay to the
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Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date such amount is made available to the Company
by the Administrative Agent until the date such amount is repaid to the
Administrative Agent, at (i) the rate per annum equal to the interest rate
applicable to such Revolving Credit Borrowing during such period in the case of
the Company and (ii) the rate per annum equal to the Federal Funds Effective
Rate during such period in the case of any Bank. If such Bank shall pay such
amount to the Administrative Agent together with interest, such amount so paid
shall constitute a Loan by such Bank as a part of such Borrowing for purposes of
this Agreement. The failure of any Bank to make its pro rata portion of any such
Borrowing available to the Administrative Agent shall not relieve any other Bank
of its obligations to make available its pro rata portion of such Borrowing on
the date such Borrowing is requested to be made, but no Bank shall be
responsible for failure of any other Bank to make such pro rata portion
available to the Administrative Agent on the date of any such Borrowing.
(c) Nothing in this Agreement shall be construed to require or
authorize any Bank to issue any Letter of Credit, it being recognized that the
Issuing Bank has the sole obligation under this Agreement to issue Letters of
Credit on behalf of the Banks, and the Commitment of each Bank with respect to
Letter of Credit Advances is expressly conditioned upon the Issuing Bank's
performance of such obligations. Upon such issuance by the Issuing Bank, each
Bank shall automatically acquire a pro rata risk participation interest in such
Letter of Credit Advance based on its respective Commitment. If the Issuing Bank
shall honor a draft or other demand for payment presented or made under any
Letter of Credit, the Issuing Bank shall provide notice thereof to each Bank on
the date such draft or demand is honored unless the Company shall have satisfied
its reimbursement obligation under Section 3.3 by payment to the Issuing Bank on
such date. Each Bank, on such date, shall make its pro rata share of the amount
paid by the Issuing Bank available in immediately available funds at the
principal office of the Administrative Agent for the account of the Issuing
Bank. If and to the extent such Bank shall not have made any required pro rata
portion available to the Issuing Bank, such Bank and the Company severally agree
to pay to the Issuing Bank forthwith on demand such amount together with
interest thereon, for each day from the date such amount was paid by the Issuing
Bank until such amount is so made available to the Issuing Bank at (i) the per
annum rate equal to the interest rate applicable during such period to the
related Loan disbursed under Section 3.3 in respect of the reimbursement
obligation of the Company in the case of the Company and (ii) the rate per annum
equal to the Federal Funds Effective Rate during such period in the case of any
Bank. If such Bank shall pay such amount to the Issuing Bank together with such
interest, such amount so paid shall constitute a Revolving Credit Loan by such
Bank as part of the Revolving Credit Borrowing disbursed in respect of the
reimbursement obligation of the Company under Section 3.3 for purposes of this
Agreement. The failure of any Bank to make its pro rata portion of any such
amount paid by the Issuing Bank available to the Issuing Bank shall not relieve
any other Bank of its obligation to make available its pro rata portion of such
amount, but no Bank shall be responsible for failure of any other Bank to make
such pro rata portion available to the Issuing Bank.
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(d) (i) The Banks agree that, subject to the provisions of
this Section 2.4(d), the then existing Termination Date (i.e., September 16,
2002) may be extended for a period of two years beyond such Termination Date
(i.e., September 16, 2004) on the fourth anniversary of the date hereof (i.e.
September 16, 2001) and on such date every two years thereafter (i.e., September
16, 2003, September 16, 2005, etc.). Such extension shall be deemed to have been
requested by the Company unless the Company delivers notice in writing to the
Administrative Agent of its election not to extend the Termination Date not less
than 150 days prior to the date such extension is to be effective. Each of the
Banks agrees to provide notice in writing to the Administrative Agent of its
agreement or refusal to extend such Termination Date not less than 120 days
prior to the date such extension is to be effective; provided, however, that the
failure of any Bank to so communicate its agreement or refusal shall be deemed
to be such Bank's refusal to so extend the Termination Date. The determination
to extend or not to extend the Termination Date shall be given or withheld by
each Bank in its absolute and sole discretion and any such agreement or refusal
once given shall (except as expressly provided in clause (ii) below) be
irrevocable.
(ii) If the aggregate Commitments of all of the Banks
consenting to such extension equal or exceed 60% of the total Commitments, the
Termination Date shall be extended as provided in clause (iii) below. If the
aggregate Commitments of all of the Banks consenting to such extension equal
less than 60% of the total Commitments, the Administrative Agent shall notify
each such consenting Bank, and each such Bank shall have five Business Days to
confirm or revoke its agreement to extend the Termination Date.
(iii) In the event that one or more Banks agree to extend the
existing Termination Date, (A) the existing Termination Date shall be extended
to the date two years after the existing Termination Date (or, if such date is
not a Business Day, the next preceding Business Day), (B) the Commitment of each
extending Bank shall remain unchanged and (C) additional lenders may be added to
this Agreement in replacement of any non-extending Banks by executing an
Assumption Agreement substantially in the form of Exhibit G hereto, provided
that each of the extending Banks shall have the right of first refusal to accept
a pro rata increase in its Commitment before any additional lender is added
hereto.
(iv) On the existing Termination Date (prior to giving effect
to any extension thereof), the Commitment of each non-extending Bank shall
terminate and the Company shall pay in full all amounts owing to such
non-extending Bank hereunder.
2.5 Conditions for Effective Date. The obligation of the Banks
to make the first Advance hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 8.1):
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(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable
written opinions (addressed to the Administrative Agent and the Banks
and dated the Effective Date) of (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel
of the Company, substantially in the form of Exhibit D-1, and (ii)
Debevoise & ▇▇▇▇▇▇▇▇, special New York counsel to the Company,
substantially in the form of Exhibit D-2, in each case covering such
other matters relating to the Company or this Agreement or the other
transactions contemplated hereby as the Required Banks shall reasonably
request. The Company hereby requests each such counsel to deliver such
opinion.
(c) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Banks
and dated the Effective Date) of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
special New York counsel for Chase, substantially in the form of
Exhibit ▇. ▇▇▇▇▇ hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Company and the Guarantors, the authorization of the
transactions contemplated hereby and any other legal matters relating
to the Company, this Agreement or such transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) To the extent requested by any Bank, a promissory note
duly executed on behalf of the Company for each such Bank;
(f) The Administrative Agent (or its counsel) shall have
received from each party thereto the Pledge Agreement duly executed,
together with blank undated stock powers and all original stock
certificates and all financing statements in connection therewith, and
the Guaranty duly executed, and, in addition, the Administrative Agent
shall have received the results of searches, in form and scope and as
of such dates as are satisfactory to the Administrative Agent, of UCC,
tax, judgment and all other liens which may have been filed against the
Company or any Guarantor;
(g) The Administrative Agent (or its counsel) shall have
received copies of all governmental and nongovernmental consents,
approvals, authorizations, declarations, registrations or filings, if
any, required on the part of the Company or any Guarantor in connection
with the execution, delivery and performance of this Agreement, any
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promissory notes issued hereunder, the Support Documents or the
transactions contemplated hereby or as a condition to the legality,
validity or enforceability of this Agreement, any promissory note
issued hereunder or any of the Support Documents, certified as true and
correct in full force and effect as of the Effective Date by a duly
authorized officer of the Company, or if none are required, a
certificate of such officer to that effect;
(h) The Administrative Agent shall have received evidence that
the principal of and interest on, and all other amounts owing in
respect of, the Indebtedness (including, without limitation, any
contingent or other amount payable in respect of letters of credit)
that is to be repaid on the Effective Date (including, without
limitation, all Indebtedness under the Existing Credit Agreement) shall
have been (or shall simultaneously be) paid in full, that any
commitments to extend credit under the agreements or instruments
relating to such Indebtedness shall have been canceled or terminated
and that all guarantees in respect of, and all Liens securing, any such
Indebtedness shall have been released (or arrangements for such release
satisfactory to the Administrative Agent shall have been made).
(i) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President or
the chief financial officer of the Company, confirming compliance with
the conditions set forth in clauses (i) and (ii) of Section 2.6.
(j) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Company
hereunder.
(k) The Administrative Agent shall have received an
Environmental Certificate dated no earlier than seven days prior to the
Effective Date.
The Administrative Agent shall notify the Company and the Banks of the Effective
Date, and such notice shall be conclusive and binding. Notwithstanding the
foregoing, the obligations of the Banks to make Advances and of the Issuing Bank
to issue Letters of Credit hereunder shall not become effective unless each of
the foregoing conditions is satisfied (or waived pursuant to Section 8.1) at or
prior to 3:00 p.m., New York City time, on September 30, 1997 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate
at such time).
2.6 Further Conditions for Disbursement. The obligation of the
Banks to make any Advance (including the first Advance), or to continue any
Eurocurrency Rate Loan or convert any Loan of another type into a Eurocurrency
Rate Loan under Section 2.7, is further subject to the satisfaction of the
following conditions precedent:
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(i) the representations and warranties contained in Article IV
and in the Support Documents (including, without limitation, any
Environmental Certificate) shall be true and correct on and as of the
date such Advance is made (both before and after such Advance is made)
as if such representations and warranties were made on and as of such
date;
(ii) no Event of Default and no Default shall exist or shall
have occurred and be continuing on the date such Advance is made
(whether before or after such Advance is made); and
(iii) in the case of any Letter of Credit Advance, the Company
shall have delivered to the Issuing Bank an application for the related
Letter of Credit and other related documentation requested by and
acceptable to the Issuing Bank appropriately completed and duly
executed on behalf of the Company.
The Company shall be deemed to have made a representation and warranty to the
Banks at the time of the making of, and the continuation or conversion of, each
Advance to the effects set forth in clauses (i) and (ii) of this Section 2.6.
For purposes of this Section 2.6, the representations and warranties contained
in Section 4.6 shall be deemed made with respect to both the financial
statements referred to therein and the most recent financial statements
delivered pursuant to Section 5.1(d)(ii) and (iii).
2.7 Subsequent Elections as to Borrowings. The Company may
elect (a) to continue a Eurocurrency Rate Borrowing, or a portion thereof, as a
Eurocurrency Rate Borrowing or (b) may elect to convert a Eurocurrency Rate
Borrowing, or a portion thereof, to a Floating Rate Borrowing or (c) elect to
convert a Floating Rate Borrowing, or a portion thereof, to a Eurocurrency Rate
Borrowing, or (d) elect to convert a Borrowing denominated in a Permitted
Currency to a Borrowing denominated in another Permitted Currency, in each case
by giving notice thereof to the Administrative Agent not later than 11:00 a.m.
New York City time three Eurocurrency Business Days prior to the date any such
continuation of or conversion to a Eurocurrency Rate Borrowing is to be
effective and not later than 11:00 a.m. New York City time one Business Day
prior to the date such conversion is to be effective in all other cases,
provided that an outstanding Eurocurrency Rate Borrowing may only be converted
on the last day of the then current Eurocurrency Interest Period with respect to
such Borrowing, and provided, further, that a Revolving Credit Loan may not be
converted to a Swing Line Loan or a Competitive Loan. If a continuation of a
Borrowing as, or a conversion of a Borrowing to, a Eurocurrency Rate Borrowing
is requested, such notice shall also specify the Eurocurrency Interest Period to
be applicable thereto upon such continuation or conversion. The Administrative
Agent shall promptly provide notice of such election to the Banks. If the
Company shall not timely deliver such a notice with respect to any outstanding
Eurocurrency Rate Borrowing, the Company shall be deemed to have elected to
convert such Eurocurrency
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Rate Borrowing to a Floating Rate Borrowing on the last day of the then current
Eurocurrency Interest Period with respect to such Borrowing.
2.8 Limitation of Requests and Elections. Notwithstanding any
other provision of this Agreement to the contrary, if, upon receiving a request
for a Eurocurrency Rate Borrowing pursuant to Section 2.1(c) or 2.4, or a
request for a continuation of a Eurocurrency Rate Borrowing as a Eurocurrency
Rate Borrowing, or a request for a conversion of a Floating Rate Borrowing to a
Eurocurrency Rate Borrowing pursuant to Section 2.7 or a request for a
conversion of a Eurocurrency Rate Borrowing denominated in a Permitted Currency
to a Eurocurrency Rate Borrowing denominated in another Permitted Currency, (i)
in the case of any Eurocurrency Rate Borrowing, deposits in the relevant
Permitted Currency for periods comparable to the Eurocurrency Interest Period
elected by the Company are not available to a Bank in the relevant interbank
market, or (ii) the applicable interest rate will not adequately and fairly
reflect the cost to a Bank of making, funding or maintaining the related
Eurocurrency Rate Borrowing or (iii) by reason of national or international
financial, political or economic conditions or by reason of any applicable law,
treaty, rule or regulation (whether domestic or foreign) now or hereafter in
effect, or the interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by a Bank with any guideline, request or directive of such authority
(whether or not having the force of law), including without limitation exchange
controls, it is impracticable, unlawful or impossible for (A) a Bank to make or
fund the relevant Eurocurrency Rate Borrowing or to continue such Eurocurrency
Rate Borrowing as a Eurocurrency Rate Borrowing or to convert a Floating Rate
Borrowing to a Eurocurrency Rate Borrowing, or (B) the Company to make or a Bank
to receive any payment under this Agreement at the place specified for payment
hereunder or to freely convert any amount paid into Dollars at market rates of
exchange or to transfer any amount paid or so converted to the address of its
principal office specified in Section 8.2, then the Company shall not be
entitled, so long as such circumstances continue, to request and the Banks shall
not be obligated to make (so long as such circumstances exist) a Eurocurrency
Rate Borrowing pursuant to Section 2.1(c) or 2.4 or a continuation of or
conversion to a Eurocurrency Rate Borrowing pursuant to Section 2.7. In the
event that such circumstances no longer exist, the Banks shall again consider
requests for Eurocurrency Rate Borrowings pursuant to Section 2.1(c) or 2.4, and
requests for continuations of and conversions to Eurocurrency Rate Borrowings
pursuant to Section 2.7.
2.9 Minimum Amounts; Limitation on Number of Borrowings.
Except for (a) Advances and conversions thereof which exhaust the entire
remaining amount of the Commitments and (b) payments required pursuant Section
3.8, each Borrowing and each continuation or conversion pursuant to Section 2.7
and each prepayment thereof shall be in a minimum amount of, in the case of
Eurocurrency Rate Borrowings, $5,000,000 (or the Optional Currency Equivalent
thereof) and in integral multiples of $1,000,000 (or the Optional Currency
Equivalent thereof), and in the case of Floating Rate Borrowings, $500,000 and
in integral multiples of $100,000, and each Letter of Credit Advance shall be in
a minimum amount of
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$100,000. No more than eight Eurocurrency Interest Periods shall be permitted to
exist at any one time with respect to all Borrowings outstanding hereunder from
time to time.
2.10 Support and Collateral. To secure the payment when due of
all obligations of the Company under this Agreement to the Banks and the
Administrative Agent, the Company shall execute and deliver, or cause to be
executed and delivered, to the Banks and the Administrative Agent Support
Documents granting the following:
(a) guaranties of all Subsidiaries of the Company that are not
Foreign Subsidiaries; and
(b) pledges of (i) 66% of the voting capital stock of each
Foreign Subsidiary that is a direct Subsidiary of (x) the Company or (y) a
Subsidiary of the Company which is organized under the laws of the United States
of America or a State thereof and which is not a Subsidiary of a Foreign
Subsidiary (each, a "Pledged Subsidiary") and (ii) 100% of all other stock of
each Pledged Subsidiary.
ARTICLE III
PAYMENTS AND PREPAYMENTS OF ADVANCES
3.1 Principal Payments.
(a) Unless earlier payment is required under this Agreement,
the Company shall pay (i) to the Administrative Agent (for the account of the
Banks) the entire outstanding principal amount of the Revolving Credit Loans on
the Termination Date and (ii) to the Administrative Agent (for the account of
each Bank making a Competitive Loan) the entire outstanding principal amount of
such Competitive Loan on the last day of the Eurocurrency Interest Period or
Fixed Rate Interest Period applicable to such Competitive Loan.
(b) The Company may at any time and from time to time prepay
all or a portion of the Loans, without premium or penalty, provided that (i) the
Company may not prepay any Competitive Loan without the prior consent of the
Bank holding such Competitive Loan, (ii) the Company may not prepay any portion
of any Loan as to which an election of or a conversion to a Eurocurrency Rate
Loan is pending pursuant to Section 2.7, (iii) unless earlier payment is
required under this Agreement, any Eurocurrency Rate Loan may only be prepaid on
the last day of the then current Eurocurrency Interest Period with respect to
such Loan, and (iv) such prepayment shall only be permitted if the Company shall
have given not less than one Business Day's notice thereof to the Administrative
Agent in the case of prepayment of any Floating Rate Loan and ten days' notice
thereof to the Administrative Agent for all other Loans, in each case such
notice specifying the Loan or portion thereof to be so prepaid and shall have
paid to the Banks, together with such prepayment of principal, all accrued
interest to the date of payment on
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such Loan or portion thereof so prepaid and all amounts owing to the Banks under
Section 3.9 in connection with such prepayment. Upon the giving of such notice,
the aggregate principal amount of such Loan or portion thereof so specified in
such notice, together with such accrued interest and other amounts, shall become
due and payable on the specified prepayment date. The Administrative Agent shall
promptly notify the Banks of any such notice of prepayment.
(c) During any period in which Revolving Credit Loans
denominated in Optional Currencies are outstanding, on each day that a
Eurocurrency Rate Borrowing, or portion thereof, is continued as a Eurocurrency
Rate Borrowing or any Floating Rate Loan is converted into a Eurocurrency Rate
Borrowing, but not more than once in any rolling seven-day period, the
Administrative Agent shall determine the aggregate outstanding principal amount
of all Advances (for which purpose the outstanding principal amount of all
Revolving Credit Loans made in an Optional Currency shall be deemed to be the
Dollar Equivalent (determined as of the date of such continuation or conversion)
of the amount in such Optional Currency of such Revolving Credit Loan). Upon
making such determination, the Administrative Agent shall promptly notify the
Banks and the Borrower thereof. If, on such date of determination, all Advances
then outstanding under this Agreement exceed the aggregate amount of the
Commitments of the Banks, the Company shall prepay to the Banks on the last day
of such related Eurocurrency Interest Period an amount equal to the amount of
such excess, together with any amounts owing to the Banks under Section 3.9 in
connection therewith.
3.2 Interest Payments. The Company shall pay interest to the
Banks on the unpaid principal amount of each Loan, for the period commencing on
the date such Loan is made until such Loan is paid in full, on each Interest
Payment Date and at maturity (whether at stated maturity, by acceleration or
otherwise), and thereafter on demand, at the following rates per annum:
(a) during such periods that such Loan is a Floating Rate
Loan, the Floating Rate, and
(b) during such periods that such Loan is a Eurocurrency Rate
Loan, the Eurocurrency Rate applicable to such Loan for each related
Eurocurrency Interest Period;
provided that each Fixed Rate Loan shall bear interest at the Fixed Rate for
such Loan. Notwithstanding the foregoing, the Company shall pay interest on
demand at the Overdue Rate on the outstanding principal amount of any Loan and
any other amount payable by the Company hereunder (other than interest) which is
not paid in full when due (whether at stated maturity, by acceleration or
otherwise) for the period commencing on the due date thereof until the same is
paid in full.
3.3 Letter of Credit Reimbursement Payments. (a)(i) The
Company agrees to pay to the Administrative Agent (for the account of the
Issuing Bank) on the day on which the
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Issuing Bank shall honor a draft or other demand for payment presented or made
under any Letter of Credit, an amount equal to the amount paid by the Issuing
Bank in respect of such draft or other demand under such Letter of Credit and
all expenses paid or incurred by the Issuing Bank related thereto. Unless the
Company shall have made such payment to the Issuing Bank on such day, upon each
such payment by the Issuing Bank, the Banks shall be deemed to have disbursed to
the Company, and the Company shall be deemed to have elected to satisfy its
reimbursement obligation by, a Revolving Credit Loan bearing interest at the
Floating Rate in an amount equal to the amount so paid by the Issuing Bank in
respect of such draft or other demand under such Letter of Credit. The amount of
such Revolving Credit Loan shall be made available by the Banks to the
Administrative Agent (for the benefit of the Issuing Bank) in accordance with
Section 2.4(b). The participation of each Bank in the relevant Letter of Credit
shall be deemed to be reduced by the amount made available by such Bank and, to
the extent of the Revolving Credit Loan so disbursed, the reimbursement
obligation of the Company under this Section 3.3 shall be deemed satisfied.
(ii) If for any reason (including without limitation as a
result of the occurrence of an Event of Default with respect to the
Company or any of its Subsidiaries pursuant to Section 6.1(h)),
Floating Rate Loans may not be made by the Banks as described in
Section 3.3(a)(i), then (A) the Company agrees that each reimbursement
amount not paid pursuant to the first sentence of Section 3.3(a)(i)
shall bear interest, payable on demand by the Administrative Agent, at
the Overdue Rate, and (B) effective on the date each such Floating Rate
Loan would otherwise have been made, each Bank severally agrees that it
shall unconditionally and irrevocably, without regard to the occurrence
of any Default or Event of Default, in lieu of a deemed disbursement of
Revolving Credit Loans, to the extent of such Bank's Commitment,
purchase a participating interest in each reimbursement amount. Each
Bank will immediately transfer to the Administrative Agent, in same day
funds, the amount of its participation. Each Bank shall share on a pro
rata basis (calculated by reference to the Commitments) in any interest
which accrues thereon and in all repayments thereof. If and to the
extent that any Bank shall not have so made the amount of such
participating interest available to the Administrative Agent, such Bank
and the Company agree to pay to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from
the date of demand by the Administrative Agent until the date such
amount is paid to the Administrative Agent, at (x) in the case of the
Company, the Overdue Rate and (y) in the case of such Bank, the Federal
Funds Effective Rate.
(b) The reimbursement obligation of the Company under this
Section 3.3 shall be absolute, unconditional and irrevocable and shall remain in
full force and effect until all obligations of the Company to the Banks
hereunder shall have been satisfied, and such obligations of the Company shall
not be affected, modified or impaired upon the happening of any event, including
without limitation, any of the following, whether or not with notice to, or the
consent of, the Company:
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(i) any lack of validity or enforceability of any Letter of
Credit or any documentation relating to any Letter of Credit or to any
transaction related in any way to such Letter of Credit (the "Letter of
Credit Documents");
(ii) any amendment, modification, waiver or consent, or any
substitution, exchange or release of or failure to perfect any interest
in collateral or security, with respect to any of the Letter of Credit
Documents;
(iii) the existence of any claim, setoff, defense or other
right which the Company may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any persons or entities for
whom any such beneficiary or any such transferee may be acting), the
Issuing Bank, the Administrative Agent or any Bank or any other person
or entity, whether in connection with any of the Letter of Credit
Documents, the transactions contemplated herein or therein or any
unrelated transactions;
(iv) any draft or other statement or document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment by the Issuing Bank to the beneficiary under any
Letter of Credit against presentation of documents which do not comply
with the terms of the Letter of Credit, including failure of any
documents to bear any reference or adequate reference to such Letter of
Credit;
(vi) any failure, omission, delay or lack on the part of the
Issuing Bank, any Bank or the Administrative Agent or any party to any
of the Letter of Credit Documents to enforce, assert or exercise any
right, power or remedy conferred upon the Issuing Bank, the
Administrative Agent, any Bank or any such party under this Agreement
or any of the Letter of Credit Documents, or any other acts or
omissions on the part of the Issuing Bank, the Administrative Agent,
any Bank or any such party; or
(vii) any other event or circumstance that would, in the
absence of this clause, result in the release or discharge by operation
of law or otherwise of the Company from the performance or observance
of any obligation, covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which the Company has or may have against the
beneficiary of any Letter of Credit shall be available hereunder to the Company
against the Issuing Bank, the Administrative Agent or any Bank. Nothing in this
Section 3.3 shall limit the liability, if any, of the Company to the Banks
pursuant to Section 8.5.
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3.4 Payment Method. (a) All payments to be made by the Company
hereunder will be made to the Administrative Agent for the account of the Banks
(including, as applicable, the Swing Line Bank and/or the Issuing Bank) (i) in
the case of principal and interest on any Loan, in the Permitted Currency in
which such Loan is denominated, and (ii) in all other cases, in Dollars, and in
all cases in immediately available, freely transferable, cleared funds not later
than 1:00 p.m. at the place for payment on the date on which such payment shall
be come due (x) in the case of principal and interest on any Loan denominated in
a Permitted Currency other than Dollars, by credit to the account of the
Administrative Agent at its branch or office or correspondent bank designated
for payments in the relevant Permitted Currency or in such other place specified
by the Administrative Agent with respect to such Loan pursuant to Section
2.4(b), and (y) in all other cases to the Administrative Agent at its offices at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except where payments are to be made
directly to the Issuing Bank or the Swing Line Bank or to the Person entitled
thereto under Section 3.7, 3.9 or 8.5. Payments received after 1:00 p.m. at the
place for payment shall be deemed to be payments made prior to 1:00 p.m. at the
place for payment on the next succeeding Business Day. The Company hereby
authorizes the Administrative Agent to charge its account with the
Administrative Agent in order to cause timely payment of amounts due hereunder
to be made (subject to sufficient funds being available in such account for that
purpose).
(b) At the time of making each such payment, the Company
shall, subject to the other terms and conditions of this Agreement, specify to
the Administrative Agent that Loan or other obligation of the Company hereunder
to which such payment is to be applied. In the event that the Company fails to
so specify the relevant obligation or if an Event of Default or Default shall
have occurred and be continuing, the Administrative Agent may apply such
payments as it may determine in its sole discretion.
(c) On the day such payments are deemed received, the
Administrative Agent shall remit to the Banks their pro rata shares of such
payments in immediately available same day funds, (i) in the case of payments of
principal and interest on any Borrowing denominated in a Permitted Currency
other than Dollars, at an account maintained and designated by each Bank at a
bank in the principal financial center of the country issuing the Permitted
Currency in which such Borrowing is denominated or in such other reasonable
place specified by such Bank and (ii) in all other cases, to the Banks at their
respective address in the United States specified for notices pursuant to
Section 8.2. In the case of payments of principal and interest on any Borrowing,
such pro rata shares shall be determined with respect to each such Bank by the
ratio which the outstanding principal balance of its Loan included in such
Borrowing bears to the outstanding principal balance of the Loans of all the
Banks included in such Borrowing and in the case of fees paid pursuant to
Section 2.3 and other amounts payable hereunder (other than the Administrative
Agent's fees payable pursuant to Section 2.3(c) and amounts payable to any Bank
under Section 2.1(c), 2.3(d), 3.7 or 3.9), such pro rata shares shall be
determined with respect to
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each such Bank by the ratio which the Commitment of such Bank bears to the
Commitments of all the Banks.
(d) This Agreement arises in the context of an international
transaction, and the specification of payments in specific currencies at
specific places pursuant to this Agreement is of the essence. Each specified
currency shall be the currency of account and payment under this Agreement as
provided herein. The obligations of the Company hereunder shall not be
discharged by an amount paid in any other currency or at another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid, on
prompt conversion into the applicable currency and transfer to the Banks under
normal banking procedure, does not yield the amount of such currency due under
this Agreement. In the event that any payment, whether pursuant to a judgment or
otherwise, upon conversion and transfer, does not result in payment of the
amount of such currency due under this Agreement, the Company shall indemnify
the Banks, as a separate obligation, for such currency deficit.
(e) If for purposes of obtaining judgment in any court it
becomes necessary to convert any currency due hereunder into any other currency,
the Company will pay such additional amount, if any, as may be necessary to
ensure that the amount paid in respect of such judgment is the amount in such
other currency which when converted at the Administrative Agent's spot rate of
exchange prevailing on the date of payment would yield the same amount of the
currency due hereunder. Any amount due from the Company under this Section
3.4(e) will be due as a separate debt and shall not be affected by judgment
being obtained for any other sum due under or in respect of this Agreement.
3.5 No Setoff or Deduction. All payments of principal and
interest on the Loans and other amounts payable by the Company hereunder shall
be made by the Company without setoff or counterclaim, and free and clear of,
and without deduction or withholding for, or on account of, any present or
future taxes, levies, imposts, duties, fees, assessments, or other charges of
whatever nature, imposed by any governmental authority, or by any department,
agency or other political subdivision or taxing authority.
3.6 Payment on Non-Business Day; Payment Computations. Except
as otherwise provided in this Agreement to the contrary, whenever any
installment of principal of, or interest on, any Loan or any other amount due
hereunder becomes due and payable on a day which is not a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day and, in
the case of any installment of principal, interest shall be payable thereon at
the rate per annum determined in accordance with this Agreement during such
extension. All interest, fees and other amounts due under this Agreement shall
be computed on the basis of a year of 360 days, except that interest computed by
reference to the Floating Rate at times when the Floating Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
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3.7 Additional Costs. (a) In the event that any applicable law,
treaty, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Bank, the Issuing Bank or
the Administrative Agent, or any interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Bank, the Issuing Bank or the Administrative Agent
with any guideline, request or directive of any such authority (whether or not
having the force of law), shall
(i) affect the basis of taxation of payments to any Bank, the
Issuing Bank or the Administrative Agent of any amounts payable by the
Company under this Agreement (other than taxes imposed on the overall net
income of the Bank, the Issuing Bank or the Administrative Agent, by the
jurisdiction, or by any political subdivision or taxing authority of any
such jurisdiction, in which any Bank, the Issuing Bank or the
Administrative Agent, as the case may be, has its principal office), or
(ii) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by any Bank, the Issuing Bank or the Administrative
Agent, or
(iii) impose any other condition with respect to this Agreement, the
Commitments, any promissory notes issued hereunder or the Loans or any
Letter of Credit, and the result of any of the foregoing is to increase
the cost to any Bank, the Issuing Bank or the Administrative Agent, as the
case may be, of making, funding, maintaining or participating in any
Eurocurrency Rate Loan, Fixed Rate Loan or Letter of Credit, or to reduce
the amount of any sum receivable by any Bank, the Issuing Bank or the
Administrative Agent, as the case may be, thereon,
then the Company shall pay to such Bank, the Issuing Bank or the Administrative
Agent, as the case may be, from time to time, upon request by such Bank or the
Issuing Bank (with a copy of such request to be provided to the Administrative
Agent) or the Administrative Agent, additional amounts sufficient to compensate
such Bank, the Issuing Bank or the Administrative Agent, as the case may be, for
such increased cost or reduced sum receivable to the extent, in the case of any
Eurocurrency Rate Loan, such Bank or the Administrative Agent is not compensated
therefor in the computation of the interest rate applicable to such Eurocurrency
Rate Loan. A statement as to the amount of such increased cost or reduced sum
receivable, prepared in good faith and in reasonable detail by such Bank, the
Issuing Bank or the Administrative Agent, as the case may be, and submitted by
such Bank, the Issuing Bank or the Administrative Agent, as the case may be, to
the Company, shall be conclusive and binding for all purposes absent manifest
error in computation.
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(b) In the event that any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect and whether or not
presently applicable to any Bank, the Issuing Bank or the Administrative Agent,
or any interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by any
Bank, the Issuing Bank or the Administrative Agent with any guideline, request
or directive of any such authority (whether or not having the force of law),
including any risk-based capital guidelines, affects or would affect the amount
of capital required or expected to be maintained by such Bank, the Issuing Bank
or the Administrative Agent (or any corporation controlling such Bank or the
Administrative Agent) and such Bank, the Issuing Bank or the Administrative
Agent, as the case may be, determines that the amount of such capital is
increased by or based upon the existence of such Bank's, the Issuing Bank's or
the Administrative Agent's obligations hereunder and such increase has the
effect of reducing the rate of return on such Bank's, the Issuing Bank's or the
Administrative Agent's (or such controlling corporation's) capital as a
consequence of such obligations hereunder to a level below that which such Bank,
the Issuing Bank or the Administrative Agent (or such controlling corporation)
could have achieved but for such circumstances (taking into consideration its
policies with respect to capital adequacy) by an amount deemed by such Bank, the
Issuing Bank or the Administrative Agent to be material, then the Company shall
pay to such Bank, the Issuing Bank or the Administrative Agent, as the case may
be, from time to time, upon request by such Bank or the Issuing Bank (with a
copy of such request to be provided to the Administrative Agent) or the
Administrative Agent, additional amounts sufficient to compensate such Bank, the
Issuing Bank or the Administrative Agent (or such controlling corporation) for
any increase in the amount of capital and reduced rate of return which such
Bank, the Issuing Bank or the Administrative Agent reasonably determines to be
allocable to the existence of such Bank's, the Issuing Bank's or the
Administrative Agent's obligations hereunder. A statement as to the amount of
such compensation, prepared in good faith and in reasonable detail by such Bank,
the Issuing Bank or the Administrative Agent, as the case may be, and submitted
by such Bank, the Issuing Bank or the Administrative Agent to the Company, shall
be conclusive and binding for all purposes absent manifest error in computation.
3.8 Illegality and Impossibility. In the event that any applicable
law, treaty or other international agreement, rule or regulation (whether
domestic or foreign) now or hereafter in effect and whether or not presently
applicable to any Bank, or any interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Bank with any guideline, request or directive of
such authority (whether or not having the force of law), including without
limitation exchange controls, (a) shall make it unlawful or impossible for any
Bank to maintain any Eurocurrency Rate Loan under this Agreement or (b) shall
make it impracticable, unlawful or impossible for, or shall in any way limit or
impair the ability of, the Company to make or any Bank to receive any payment
under this Agreement at the place specified for payment hereunder or to freely
convert any amount paid into Dollars at market rates of exchange or to transfer
any amount paid or so converted to the Administrative Agent at its offices at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, the
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New York, the Company shall, upon receipt of notice thereof, convert such
Eurocurrency Rate Loan to a Floating Rate Loan (i) on the last day of the then
current Eurocurrency Interest Period applicable to such Eurocurrency Rate Loan
if such Bank may lawfully continue to maintain such Eurocurrency Rate Loan to
such day, or (ii) immediately if such Bank may not continue to maintain such
Eurocurrency Rate Loan to such day (in which case the Company shall pay all
amounts owing to such Bank under Section 3.9). Such Bank's obligation to make or
continue Eurocurrency Rate Loans, or to convert Floating Rate Loans into
Eurocurrency Rate Loans, shall be suspended until such time as such Bank may
again make and maintain Eurocurrency Rate Loans and the Company may make, or the
Bank may receive, payment under this Agreement as provided herein.
3.9 Indemnification. If the Company makes any payment of principal
with respect to any Eurocurrency Rate Loan or Fixed Rate Loan on any other date
than the last day of a Eurocurrency Interest Period or Fixed Rate Interest
Period applicable thereto (whether pursuant to Section 3.8, Section 6.2 or
otherwise), or if the Company fails to borrow any Eurocurrency Rate Loan or
Fixed Rate Loan, to continue any Eurocurrency Rate Loan as a Eurocurrency Rate
Loan or to convert any Floating Rate Loan into a Eurocurrency Rate Loan, after
notice has been given to the Banks in accordance with Section 2.1(c)(iv), 2.4 or
2.7, as the case may be, or if the Company fails to make any payment of
principal or interest in respect of a Eurocurrency Rate Loan or Fixed Rate Loan
when due, the Company shall reimburse each Bank on demand for any resulting loss
or expense incurred by each such Bank, including without limitation any loss
incurred in obtaining, liquidating or employing deposits from third parties,
whether or not such Bank shall have funded or committed to fund such Loan. A
statement as to the amount of such loss or expense, prepared in good faith and
in reasonable detail by such Bank and submitted by such Bank to the Company,
shall be conclusive and binding for all purposes absent manifest error in
computation. Calculation of all amounts payable to such Bank under this Section
3.9 in respect of a Eurocurrency Rate Loan shall be made as though such Bank
shall have actually funded or committed to fund the relevant Eurocurrency Rate
Loan through the purchase of an underlying deposit in an amount equal to the
amount of such Loan and having a maturity comparable to the related Eurocurrency
Interest Period.
3.10 Substitution of Banks. (a) Each Bank agrees that, as promptly
as practicable after it becomes aware of the occurrence of an event or the
existence of a condition that (i) would cause it to incur any increased costs or
render it unable to perform its agreements under Section 3.7 or 3.8, or (ii)
would require the Company to pay an increased amount under Section 3.7 or render
it unable to accept performance under Section 3.8, it will promptly notify the
Administrative Agent, who shall notify the Company, of such event or condition
and, to the extent not inconsistent with such Bank's internal policies, will use
its reasonable efforts to make, fund or maintain the affected Loans of such Bank
through another lending office of such Bank if as a result thereof the
additional monies which would otherwise be required to be paid or the reduction
of amounts receivable by such Bank thereunder in respect of such Loans would be
materially reduced, or such inability to perform would cease to exist, or the
increased costs
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which would otherwise be required to be paid in respect of such Loans pursuant
to Section 3.7 would be materially reduced or the taxes or other amounts
otherwise payable under Section 3.7 would be materially reduced, and if, as
determined by such Bank, in its sole discretion, the making, funding or
maintaining of such Loans through such other lending office would not otherwise
materially adversely affect such Loans or such Bank.
(b) In the event any Bank shall have delivered to the Company a
notice pursuant to Section 3.10(a), that a Eurocurrency Rate Loan is no longer
available from such Bank pursuant to Section 3.8 or that any of the events
designated in Section 3.10(a) have occurred or shall have failed to make its
share of a Loan available in accordance with Section 2.4(b), the Company may
(but subject in any such case to the payments required by Sections 3.1(b) and
3.9), provided that there shall exist no Default or Event of Default, upon at
least five Business Days' prior written, facsimile or telex notice to such Bank
and the Administrative Agent, identify to the Administrative Agent a lending
institution reasonably acceptable to the Administrative Agent which will
purchase the Commitment and the amount of outstanding Loans from the Bank
providing such notice and such Bank shall thereupon assign its Commitment, any
Loans owing to such Bank and any promissory notes held by such Bank to such
replacement lending institution pursuant to Section 8.6. Such notice shall
specify an effective date for such assignment and at the time thereof, the
Company shall pay all accrued interest, facility fees and all other amounts
(including without limitation all amounts payable under Article III) owing
hereunder to such Bank as at such effective date for such assignment.
3.11 Evidence of Debt. (a) Each Bank shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of
the Company to such Bank resulting from each Loan made by such Bank, including
the amounts of principal and interest payable and paid to such Bank from time to
time hereunder.
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, whether such Loan is a
Eurocurrency Rate Loan, a Floating Rate Loan or a Fixed Rate Loan and the
Eurocurrency Interest Period or Fixed Rate Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due
and payable from the Company to each Bank hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder for the account of the Banks
and each Bank's share thereof.
(c) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section 3.11 shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Bank or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Company to
repay the Loans in accordance with the terms of this Agreement.
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(d) Any Bank may request that Loans made by it be evidenced by a
promissory note. In such event, the Company shall prepare, execute and deliver
to such Bank a promissory note payable to the order of such Bank (or, if
requested by such Bank, to such Bank and its registered assigns) and in a form
approved by the Administrative Agent. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 8.6) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
4.1 Corporate Existence and Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is duly qualified to do business, and is in good standing, in all
additional jurisdictions where such qualification is necessary under applicable
law. The Company has all requisite corporate power to own or lease the
properties used in its business and to carry on its business as now being
conducted and as proposed to be conducted, and to execute, deliver and perform
this Agreement, any promissory notes issued hereunder and any other Support
Document to which the Company is a party and to engage in the transactions
contemplated by this Agreement.
4.2 Corporate Authority. The execution, delivery and performance by
the Company of this Agreement, any promissory notes issued hereunder and any
Support Document to which it is a party, and the transactions contemplated
hereby, have been duly authorized by all necessary corporate action and are not
in contravention of any law, rule or regulation, or any judgment, decree, writ,
injunction, order or award of any arbitrator, court or governmental authority,
or of the terms of the Company's charter or by-laws, or of any contract or
undertaking to which the Company is a party or by which the Company or any of
its Subsidiaries or its or their respective property may be bound or affected or
result in the imposition of any Lien except for Permitted Liens.
4.3 Binding Effect. Each of this Agreement and the Support Documents
to which the Company is a party is, and any promissory note when delivered
hereunder will be, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with their respective terms.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the
corporate name, jurisdiction of incorporation and ownership of each Subsidiary
of the Company. Each such
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Subsidiary and each corporation becoming a Subsidiary of the Company after the
date hereof is and will be a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is and
will be duly qualified to do business in each additional jurisdiction where such
qualification is or may be necessary under applicable law. Each Subsidiary of
the Company has and will have all requisite corporate power to own or lease the
properties used in its business and to carry on its business as now being
conducted and as proposed to be conducted. All outstanding shares of capital
stock of each class of each Subsidiary of the Company have been and will be
validly issued and are and will be fully paid and nonassessable and, except as
otherwise indicated in Schedule 4.4 hereto or disclosed in writing to the
Administrative Agent and Banks from time to time, are and will be owned,
beneficially and of record, by the Company or another Subsidiary of the Company
free and clear of any Liens.
4.5 Litigation. Except as set forth in Schedule 4.5 hereto, there is
no action, suit or proceeding pending or, to the best of the Company's
knowledge, threatened against or affecting the Company or any of its
Subsidiaries before or by any court, governmental authority or arbitrator, which
if adversely decided might result, either individually or collectively, in any
material adverse change in the business, properties, operations or condition,
financial or otherwise, of the Company or any of its Subsidiaries or in any
material adverse effect on the legality, validity or enforceability of this
Agreement, any promissory notes issued hereunder or any Support Document and, to
the best of the Company's knowledge, there is no basis for any such action, suit
or proceeding.
4.6 Financial Condition. The consolidated balance sheet,
consolidated statement of income and consolidated statement of cash flows of the
Company and its Subsidiaries for the fiscal year ended December 31, 1996 and
reported on by Coopers & ▇▇▇▇▇▇▇ L.L.P., independent certified public
accountants, and the unaudited consolidated balance sheet, consolidated
statement of income and consolidated statement of cash flows of the Company and
its Subsidiaries for the two consecutive fiscal quarters ended June 30, 1997,
copies of which have been furnished to the Banks, fairly present, and the
financial statements of the Company and its Subsidiaries delivered pursuant to
Section 5.1(d) will fairly present, the consolidated financial position of the
Company and its Subsidiaries as at the respective dates thereof, and the
consolidated results of operations of the Company and its Subsidiaries for the
respective periods indicated, all in accordance with Generally Accepted
Accounting Principles consistently applied (subject, in the case of said interim
statements, to year-end audit adjustments). There has been no material adverse
change in the business, properties, operations or condition (financial or
otherwise) of the Company or any of its Subsidiaries since December 31, 1996.
There is no material Contingent Liability of the Company that is not reflected
in such financial statements or in the notes thereto.
4.7 Use of Advances. The Company will use the proceeds of the Loans
to refinance indebtedness outstanding under the Existing Credit Agreement and
for general
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corporate purposes including Acquisitions permitted hereunder. Neither the
Company nor any of its Subsidiaries extends or maintains, in the ordinary course
of business, credit for the purpose, whether immediate, incidental, or ultimate,
of buying or carrying margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System), and no part of the proceeds
of any Advance will be used for the purpose, whether immediate, incidental, or
ultimate, of buying or carrying any such margin stock or maintaining or
extending credit to others for such purpose.
4.8 Consents, Etc. Except for such consents, approvals,
authorizations, declarations, registrations or filings delivered by the Company
pursuant to Section 2.5(g), if any, each of which is in full force and effect,
no consent, approval or authorization of or declaration, registration or filing
with any governmental authority or any nongovernmental person or entity,
including without limitation any creditor, lessor or stockholder of the Company
or any of its Subsidiaries, is required on the part of the Company in connection
with the execution, delivery and performance of this Agreement, any promissory
notes issued hereunder, the Support Documents or the transactions contemplated
hereby or as a condition to the legality, validity or enforceability of this
Agreement, any promissory notes issued hereunder or any of the Support
Documents.
4.9 Taxes. The Company and its Subsidiaries have filed all tax
returns (federal, state and local) required to be filed and have paid all taxes
shown thereon to be due and required to be paid including interest and
penalties, or have established adequate financial reserves on their respective
books and records for payment thereof. Neither the Company nor any of its
Subsidiaries knows of any actual or proposed tax assessment or any basis
therefor, and no extension of time for the assessment of deficiencies in any
federal or state tax has been granted by the Company or any Subsidiary, except
to the extent that payment of any of the foregoing is then being contested in
good faith by appropriate legal proceedings and with respect to which adequate
financial reserves have been established on the books and records of the Company
or such Subsidiary.
4.10 Title to Properties. Except as otherwise disclosed in the
latest balance sheet referred to in Section 4.6 or delivered pursuant to Section
5.1(d), the Company or one or more of its Subsidiaries have good and marketable
fee simple title to all of the real property, and a valid and indefeasible
ownership interest in all of the other properties and assets reflected in said
balance sheet or subsequently acquired by the Company or any Subsidiary. All of
such properties and assets are free and clear of any Lien except for Permitted
Liens.
4.11 ERISA. The Company, its Subsidiaries, the ERISA Affiliates and
the Plans are in compliance in all material respects with those provisions of
ERISA and of the Code which are applicable with respect to any Plan. No
Prohibited Transaction and no Reportable Event has occurred with respect to any
Plan. None of the Company, any of its Subsidiaries or any of the ERISA
Affiliates is an employer with respect to any Multiemployer Plan. The Company,
its
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Subsidiaries and the ERISA Affiliates have met the minimum funding requirements
under ERISA and the Code with respect to each of the respective Plans, if any,
and have not incurred any liability to the PBGC or any Plan. The execution,
delivery and performance of this Agreement, any promissory notes issued
hereunder and the Support Documents do not constitute a Prohibited Transaction.
There is no material Unfunded Benefit Liability, determined in accordance with
Section 4001(a)(18) of ERISA, with respect to any Plan.
4.12 Disclosure. No report or other information furnished in writing
or on behalf of the Company or any Guarantor to any Bank or the Administrative
Agent in connection with the negotiation or administration of this Agreement
(including, without limitation, the Confidential Information Memorandum dated
August, 1997) contains any material misstatement of fact or omits to state any
material fact or any fact necessary to make the statements contained therein not
misleading. Neither this Agreement, any promissory notes issued hereunder, the
Support Documents nor any other document, certificate, or report or statement or
other information furnished to any Bank or the Administrative Agent by or on
behalf of the Company in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact in order to make the statements contained herein and therein not
misleading. There is no fact known to the Company which materially and adversely
affects, or which in the future may (so far as the Company can now foresee)
materially and adversely affect, the business, properties, operations or
condition, financial or otherwise, of the Company or any Subsidiary, which has
not been set forth in this Agreement or in the other documents, certificates,
statements, reports and other information furnished in writing to the Banks by
or on behalf of the Company in connection with the transactions contemplated
hereby.
4.13 Environmental and Safety Matters. All representations and
warranties made by the Company in the Environmental Certificate delivered
pursuant to Section 2.5(k) and Section 5.1(d)(vii) are true and correct.
4.14 Intellectual Property. Set forth on Part I of Schedule 4.14
hereto is a complete and accurate list of all material patents, trademarks,
trade names, service marks and copyrights, and all applications therefor and
licenses thereof, of the Company and the Guarantors showing as of the Effective
Date the jurisdiction in which registered, the registration number and the date
of registration. The Company and the Guarantors own, or are licensed to use, all
trademarks, tradenames, service marks, copyrights, technology, know-how and
processes necessary for the conduct of its business as currently conducted (the
"Intellectual Property"). Except as set forth on Part II of Schedule 4.14
hereto, no claim has been asserted and is pending by any person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Company or any
Guarantor know of any valid basis for any such claim, the use of such
Intellectual Property by the Company and the Guarantors does not infringe on the
rights of any Person, and, to the knowledge of the Company, no Intellectual
Property has been infringed, misappropriated or diluted by any other Person.
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4.15 Investment Company Status. Neither the Company nor any of
its Subsidiaries is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940.
ARTICLE V
COVENANTS
5.1 Affirmative Covenants. The Company covenants and agrees that,
until payment in full of the principal of and accrued interest on the Loans and
any other amounts payable hereunder and the performance of all other obligations
of the Company under this Agreement, unless the Required Banks shall otherwise
consent in writing, the Company shall, and, except with respect to Section
5.1(d), shall cause each of its Subsidiaries to:
(a) Preservation of Corporate Existence, Etc. Do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence and its qualification as a foreign corporation in good standing
in each jurisdiction in which such qualification is necessary under applicable
law and the rights, licenses, permits (including those required under
Environmental Laws), franchises, patents, copyrights, trademarks and trade names
material to the conduct of its businesses; and defend all of the foregoing
against all claims, actions, demands, suits or proceedings at law or in equity
or by or before any governmental instrumentality or other agency or regulatory
authority.
(b) Compliance with Laws, Etc. Comply in all material respects with
all applicable laws, rules, regulations and orders of any governmental authority
whether federal, state, local or foreign (including without limitation ERISA,
the Code and Environmental Laws), in effect from time to time; and pay and
discharge promptly when due all taxes, assessments and governmental charges or
levies imposed upon it or upon its income, revenues or property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise, which, if unpaid, might give rise to Liens
upon such properties or any portion thereof, except to the extent that payment
of any of the foregoing is then being contested in good faith by appropriate
legal proceedings and with respect to which adequate financial reserves have
been established on the books and records of the Company or such Subsidiary.
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of the business of the
Company or any of its Subsidiaries and keep such property in good repair,
working order and condition and from time to time make, or cause to be made all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times in accordance with customary and prudent
business practices for similar businesses; and maintain in full force and effect
insurance with responsible and reputable insurance companies or associations in
such amounts, on such terms and covering such
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risks, including fire and other risks insured against by extended coverage, as
is usually carried by companies engaged in similar businesses and owning similar
properties similarly situated and maintain in full force and effect public
liability insurance, insurance against claims for personal injury or death or
property damage occurring in connection with any of its activities or any of any
properties owned, occupied or controlled by it, in such amount as it shall
reasonably deem necessary, and maintain such other insurance as may be required
by law or as may be reasonably requested by the Required Banks for purposes of
assuring compliance with this Section 5.1(c).
(d) Reporting Requirements. Furnish to the Banks and the
Administrative Agent the following:
(i) promptly, and in any event within (A) three calendar days after
becoming aware of the occurrence of any Event of Default or Default, (B)
10 calendar days after becoming aware of the occurrence of the
commencement of any material litigation against, by or affecting the
Company or any of its Subsidiaries, and any material developments therein,
(C) 10 calendar days after becoming aware of entering into any material
contract or undertaking that is not entered into in the ordinary course of
business and (D) 10 calendar days after becoming aware of any development
in the business or affairs of the Company or any of its Subsidiaries which
has resulted in or which is likely, in the reasonable judgment of the
Company, to result in a material adverse change in the business,
properties, operations or condition, financial or otherwise of the Company
or any of its Subsidiaries, a statement of the chief financial officer of
the Company setting forth details of such Event of Default or such event
or condition or such litigation and the action which the Company or such
Subsidiary, as the case may be, has taken and proposes to take with
respect thereto;
(ii) as soon as available and in any event within 60 days after the
end of each fiscal quarter of the Company, the consolidated and
consolidating balance sheet of the Company and its Subsidiaries as of the
end of such quarter, and the related consolidated and consolidating
statement of income and consolidated and consolidating statement of cash
flows for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date or
period of the preceding fiscal year, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the chief financial
officer of the Company as having been prepared in accordance with
Generally Accepted Accounting Principles, together with a certificate of
the chief financial officer of the Company stating (A) that no Default or
Event of Default has occurred and is continuing or, if a Default or Event
of Default has occurred and is continuing, a statement setting forth the
details thereof and the action which the Company has taken and proposes to
take with respect thereto, and (B) that a computation (which computation
shall accompany such certificate and shall be in reasonable detail)
showing compliance with
Credit Agreement
▇▇
- ▇▇ -
▇▇▇▇▇▇▇ ▇.▇(▇), (▇), (▇), (▇), (▇), (▇) and (n) is in conformity with the
terms of this Agreement;
(iii) as soon as available and in any event within 120 days after
the end of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Company and its Subsidiaries as of the end of such
fiscal year and the related consolidated statement of income and
consolidated statement of cash flows of the Company and its Subsidiaries
for such fiscal year, with a customary audit report of Coopers & ▇▇▇▇▇▇▇
L.L.P., or any of the six largest independent certified public accounting
firms in the United States, without qualifications unacceptable to the
Required Banks, together with a certificate or opinion of such accountants
stating (A) that they have reviewed this Agreement and stating further
whether, in the course of their review of such financial statements, they
have become aware of any Default or Event of Default, and, if such Default
or Event of Default then exists and is continuing, a statement setting
forth the nature and status thereof, and (B) that a computation by the
Company (which computation shall accompany such certificate and shall be
in reasonable detail) showing compliance with Section 5.2 (a), (b), (c),
(d), (e), (k) and (n) is in conformity with the terms of this Agreement;
(iv) promptly after the sending or filing thereof, copies of all
reports, proxy statements and financial statements which the Company or
any of its Subsidiaries sends to or files with any of their respective
security holders or any securities exchange or the Securities and Exchange
Commission or any successor agency thereof;
(v) as soon as available and in any event within 60 days after the
end of each fiscal quarter, a summary indicating updates on all
environmental activities, remediation efforts and investigations by
governmental entities regarding environmental matters and such other
information regarding environmental matters as any Bank or the
Administrative Agent may reasonably request;
(vi) promptly and in any event within 10 calendar days after
receiving or becoming aware thereof, (A) a copy of any notice of intent to
terminate any Plan filed with the PBGC, (B) a statement of the chief
financial officer of the Company setting forth the details of the
occurrence of any Reportable Event with respect to any Plan, (C) a copy of
any notice that the Company, any of its Subsidiaries or any ERISA
Affiliate may receive from the PBGC relating to the intention of the PBGC
to terminate any Plan or to appoint a trustee to administer any Plan, or
(D) a copy of any notice of failure to make a required installment or
other payment within the meaning of Section 412(n) of the Code or Section
302(f) of ERISA with respect to a Plan;
(vii) within 60 calendar days after the end of each fiscal year of
the Company, a newly executed Environmental Certificate; and
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50
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(viii) promptly, such other information respecting the business,
properties, operations or condition, financial or otherwise, of the
Company or any of its Subsidiaries as any Bank or the Administrative Agent
may from time to time reasonably request.
(e) Accounting, Access to Records, Books, Etc. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with
Generally Accepted Accounting Principles and to comply with the requirements of
this Agreement and, at any reasonable time and from time to time, (i) permit any
Bank or the Administrative Agent or any agents or representatives thereof to
examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, the Company and its Subsidiaries, and to
discuss the affairs, finances and accounts of the Company and its Subsidiaries
with their respective directors, officers, employees and independent auditors,
and by this provision the Company does hereby authorize such persons to discuss
such affairs, finances and accounts with any Bank or the Administrative Agent,
and (ii) permit the Administrative Agent or any of its agents or representatives
to conduct a comprehensive field audit of its books, records, properties and
assets.
(f) Additional Guaranty and Pledge. Promptly cause each person
becoming a Subsidiary of the Company (to the extent required by Section 2.10) to
execute and deliver to the Banks and the Administrative Agent, within 30 days
after such person becomes a Subsidiary, a Guaranty, together with other related
documents described in Sections 2.5(d) and 2.5(f), and promptly pledge such
shares of each person that becomes a Foreign Subsidiary to the extent required
by Section 2.10, within 60 days after such person becomes a Subsidiary. The
Company shall notify the Banks and the Administrative Agent, within 10 days
after the occurrence thereof, of any person becoming a Subsidiary.
(g) Further Assurances. Execute and deliver within 60 days after
request therefor by any Bank or the Administrative Agent, all further
instruments and documents and take all further action that may be necessary or
desirable, or that the Administrative Agent may request, in order to give effect
to, and to aid in the exercise and enforcement of the rights and remedies of the
Banks under, this Agreement, any promissory notes issued hereunder and the
Support Documents. Without limiting the foregoing, the Company shall, within 60
days after the request therefor by the Administrative Agent, deliver to the
Administrative Agent written opinions of local counsel (addressed to the
Administrative Agent and the Banks), in form and substance reasonably
satisfactory to the Administrative Agent, with respect to the enforceablity of
the pledge of shares of any Foreign Subsidiary pursuant hereto in the
jurisdiction of organization of such Foreign Subsidiary and such other related
matters as the Administrative Agent shall reasonably request.
5.2 Negative Covenants. Until payment in full of the principal of
and accrued interest on the Loans and any other amounts payable hereunder and
the performance of all other
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obligations of the Company under this Agreement, the Company agrees that, unless
the Required Banks shall otherwise consent in writing it shall not:
(a) Funded Indebtedness to Cash Flow. Permit or suffer the ratio of
(i) Consolidated Funded Indebtedness of the Company and its Subsidiaries as at
the end of any fiscal quarter of the Company to (ii) Consolidated Cash Flow of
the Company and its Subsidiaries for the period of the four consecutive fiscal
quarters then ending to be greater than 4.0 to 1.0.
(b) Cash Flow to Interest Expense. Permit or suffer the ratio of (i)
Consolidated Cash Flow of the Company and its Subsidiaries, calculated as at the
end of each fiscal quarter of the Company, for the period of the four
consecutive fiscal quarters then ending to (ii) Interest Expense of the Company
and its Subsidiaries for such period to be less than 3.0 to 1.0.
(c) Net Worth. Permit or suffer Consolidated Net Worth of the
Company and its Subsidiaries to be less than the sum of (i) $200,000,000 plus
(ii) an amount equal to 50% of Cumulative Net Income (without reduction for a
net loss) of the Company and its Subsidiaries for each fiscal year of the
Company ending after the Effective Date plus (iii) an amount equal to 100% of
the Net Cash Proceeds of any equity offering after the Effective Date.
(d) Indebtedness. Create, incur, assume or in any manner become
liable in respect of, or suffer to exist, or permit or suffer any Subsidiary to
create, incur, assume or in any manner become liable in respect of, or suffer to
exist, any Indebtedness other than:
(i) the Advances;
(ii) the Indebtedness described in Schedule 5.2(d) hereto, having
the same terms as those existing on the date of this Agreement, but no
extension, refinancing, replacement, amendment or renewal thereof shall be
permitted;
(iii) Indebtedness of any Subsidiary of the Company owing to the
Company or to any other Subsidiary of the Company;
(iv) unsecured current Indebtedness constituting obligations for the
unpaid purchase price of goods, property or services incurred in the
ordinary course of business (A) to a seller of inventory purchased for
sale or lease in the ordinary course of business of the Company or any of
its Subsidiaries (B) to a seller of other property used in the business of
the Company or any of its Subsidiaries or (C) to a provider of services to
the Company or any of its Subsidiaries;
(v) Hedging Agreements having a notional principal amount not
exceeding the aggregate outstanding principal amount of Indebtedness at
any one time;
Credit Agreement
▇▇
- ▇▇ -
(▇▇) ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇; and
(vii) Indebtedness in aggregate principal amount at any one time
outstanding other than (i) through (vi) above not exceeding 20% of the
aggregate Commitments at such time, provided that the aggregate principal
amount of such Indebtedness created, incurred or assumed by any Foreign
Subsidiary (or in respect of which any Foreign Subsidiary becomes liable)
shall not exceed the greater of 7.5% of the aggregate Commitments at such
time or $30,000,000.
(e) Liens. Create, incur or suffer to exist any Lien on any of the
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company or any of
its Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes being contested in
good faith by appropriate proceedings and as to which adequate financial
reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA) created and
maintained in the ordinary course of business which are not material in
the aggregate, and which would not have a material adverse effect on the
business or operations of the Company or any of its Subsidiaries and which
constitute (A) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation, (B) good faith
deposits in connection with bids, tenders, contracts or leases to which
the Company or any of its Subsidiaries is a party for a purpose other than
borrowing money or obtaining credit, including rent security deposits, (C)
liens imposed by law, such as those of carriers, warehousemen and
mechanics, if payment of the obligation secured thereby is not yet due,
(D) liens securing taxes, assessments or other governmental charges or
levies not yet subject to penalties for nonpayment, and (E) pledges or
deposits to secure public or statutory obligations of the Company or any
of its Subsidiaries, or surety, customs or appeal bonds to which the
Company or any of its Subsidiaries is a party;
(iii) Liens affecting real property which constitute minor survey
exceptions or defects or irregularities in title, minor encumbrances,
easements or reservations of, or rights of others for, rights of way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of such real
property, provided that all of the foregoing, in the aggregate, do not at
any time materially detract from the value of said properties or
materially impair their use in the operation of the businesses of the
Company or any of its Subsidiaries;
(iv) Liens created pursuant to the Support Documents and Liens
expressly permitted by the Support Documents;
Credit Agreement
53
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(v) each Lien described in Schedule 5.2(e) hereto, which may be
suffered to exist upon the same terms as those existing on the date
hereof, but no extension, refinancing, replacement, amendment or renewal
thereof shall be permitted;
(vi) any Lien created to secure payment of a portion of the purchase
price of, or existing at the time of acquisition of, any tangible fixed
asset acquired by the Company or any of its Subsidiaries, which may be
created or suffered to exist upon such fixed asset if the outstanding
principal amount of the Indebtedness secured by such Lien does not at any
time exceed the purchase price paid by the Company or such Subsidiary for
such fixed asset, provided that such Lien does not encumber any other
asset at any time owned by the Company or such Subsidiary, and provided,
further, that not more than one such Lien shall encumber such fixed asset
at any one time;
(vii) Liens in favor of the Company or any of its Subsidiaries as
security for Indebtedness permitted by Section 5.2(d)(iii); and
(viii) the interest or title of a lessor under any lease otherwise
permitted under this Agreement with respect to the property subject to
such lease to the extent performance of the obligations of the Company or
its Subsidiary thereunder are not delinquent.
(f) Merger; Etc. Merge or consolidate or amalgamate with any other
person or take any other action having a similar effect; provided, however, that
this Section 5.2(f) shall not prohibit any merger if (i) the Company is the
surviving entity and (ii) the Company has provided the Administrative Agent with
pro forma financial statements prior to such acquisition or merger demonstrating
compliance with Sections 5.2(a), (b), (c), (d) and (e) and a certificate of the
chief financial officer of the Company certifying compliance with Sections
5.2(k) and (n), in each case after giving effect to such merger.
(g) Acquisitions. Enter into, or permit any Subsidiary to enter
into, any Acquisition with respect to which the Purchase Price paid by the
Company and its Subsidiaries exceeds $5,000,000 (or the equivalent thereof in
any other currency); provided, however, that this Section 5.2(g) shall not
prohibit any such Acquisition if (i) such Acquisition, if the Acquired Entity is
a publicly held corporation, shall have been approved by the Board of Directors
of the Acquired Entity, (ii) after giving effect to such Acquisition, the
Company and/or its Subsidiaries own in excess of 50% of Acquired Entity; (iii)
the Company has delivered to the Administrative Agent, not less than five
Business Days prior to such Acquisition, a reasonably detailed description of
such Acquisition (including, without limitation, the business, assets or Person,
the Purchase Price thereof and the method and structure of payment thereof);
(iv) the Acquired Entity is engaged in a line of business (A) related to the
biological, biopharmaceutical, biotechnological or chemical processing and
refining business or (B) otherwise acceptable to the
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54
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Required Banks; (v) the Company has provided the Administrative Agent with pro
forma financial statements prior to such acquisition demonstrating compliance
with Sections 5.2(a), (b), (c), (d) and (e) and a certificate of the chief
financial officer of the Company certifying compliance with Sections 5.2(k) and
(n), in each case after giving effect to such Acquisition; and (vi) both
immediately prior to such Acquisition and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing.
(h) Disposition of Assets; Etc. Sell, lease, license, transfer,
assign or otherwise dispose of all or a material portion of its business,
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether in one or a series of transactions, other than inventory
sold in the ordinary course of business upon customary credit terms and sales of
scrap or obsolete material or equipment, and shall not permit or suffer any
Subsidiary to do any of the foregoing; provided, however, that this Section
5.2(h) shall not prohibit any such sale, lease, license, transfer, assignment or
other disposition if the aggregate book value (disregarding any write-downs of
such book value other than ordinary depreciation and amortization) of all of the
business, assets, rights, revenues and property disposed of after the date of
this Agreement shall be less than $2,000,000 in the aggregate in each fiscal
year and if, immediately after such transaction, no Default or Event of Default
shall exist or shall have occurred and be continuing.
(i) Nature of Business. Make or suffer any substantial change in the
nature of its biological, biopharmaceutical, biotechnological and chemical
processing and refining businesses or engage in any business other than the
biological, biopharmaceutical, biotechnological and chemical processing and
refining businesses.
(j) Dividends and Other Restricted Payments. Make, pay, declare or
authorize any dividend, payment or other distribution in respect of any class of
its capital stock or any dividend, payment or distribution in connection with
the redemption, purchase, retirement or other acquisition, directly or
indirectly, of any shares of its capital stock other than such dividends,
payments or other distributions to the extent payable solely in shares of the
capital stock of the Company, provided, however, that the Company may make, pay,
declare or authorize dividends, payments and other such distributions, if, both
before and after any such dividend, payment or other such distribution is made,
no Default or Event of Default shall exist or shall have occurred and be
continuing or would be caused by such dividend, payment or such other
distribution. For purposes of this Section 5.2(j), "capital stock" shall include
capital stock and any securities exchangeable for or convertible into capital
stock and any warrants, rights or other options to purchase or otherwise acquire
capital stock or such securities.
(k) Investments, Loans and Advances. Purchase or otherwise acquire
any capital stock of or other ownership interest in, or debt securities of or
other evidences of Indebtedness of, any other person; or make any loan or
advance of any of its funds or property or make any other extension of credit
to, or make any investment or acquire any interest whatsoever in, any other
person; or incur any Contingent Liability; or permit any Subsidiary to do any of
the
Credit Agreement
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foregoing; other than (i) extensions of trade credit made in the ordinary course
of business on customary credit terms and commission, travel and similar
advances made to officers and employees in the ordinary course of business, (ii)
commercial paper of any United States issuer having the highest rating then
given by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Ratings Services
(a division of The McGraw Hill Companies, Inc.), direct obligations of and
obligations fully guaranteed by the United States of America or any agency or
instrumentality thereof, or certificates of deposit of any commercial bank which
is a member of the Federal Reserve System having a rating of A-1 or P-1 or
better by Standard & Poor's Ratings Services or ▇▇▇▇▇'▇ Investors Service, Inc.,
respectively, and which has capital, surplus and undivided profit (as shown on
its most recently published statement of condition) aggregating not less than
$100,000,000, provided, however, that each of the foregoing investments has a
maturity date not later than 180 days after the acquisition thereof by the
Company or any of its Subsidiaries, (iii) acquisitions of stock pursuant to
Section 5.2(g), (iv) loans permitted pursuant to Section 5.2(d)(iii) and (v)
those investments, loans, advances and other transactions described in Schedule
5.2(k) hereto, having the same terms as existing on the date of this Agreement,
but no extension or renewal thereof shall be permitted.
(l) Transactions with Affiliates. Enter into, become a party to, or
become liable in respect of, or permit or suffer any Subsidiary to enter into,
become a party to, or become liable in respect of, any contract or undertaking
with any Affiliate not included in the consolidated financial statements of the
Company delivered to the Administrative Agent pursuant to Section 5.1(d) except
in the ordinary course of business and on terms not less favorable to the
Company or such Subsidiary than those which could be obtained if such contract
or undertaking were an arms length transaction with a person other than an
Affiliate.
(m) Sale and Leaseback Transactions. Become or remain liable in any
way, or permit or suffer any Subsidiary to become or remain liable in any way,
whether directly or by assignment or as a guarantor or other contingent obligor,
for the obligations of the lessee or user under any lease or contract for the
use of any real or personal property if such property is owned on the date of
this Agreement or thereafter acquired by the Company or any of its Subsidiaries
and has been or is to be sold or transferred to any other person and was, is or
will be used by the Company or any such Subsidiary for substantially the same
purpose as such property was used by the Company or such Subsidiary prior to
such sale or transfer.
(n) Contingent Liabilities. Create, incur, assume, or in any manner
become liable in respect of, or suffer to exist, Contingent Liabilities in
excess of 3% of Consolidated Net Worth of the Company and its Subsidiaries,
except the Contingent Liabilities listed on attached Schedule 5.2(n) hereto.
(o) Negative Pledge Limitation. Enter into any agreement with any
person other than the Banks pursuant hereto which prohibits or limits the
ability of the Company or any Subsidiary to create, incur, assume or suffer to
exist any Lien upon any of its assets, rights,
Credit Agreement
56
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revenues or property, real, personal or mixed, tangible or intangible, whether
now owned or hereafter acquired.
(p) Inconsistent Agreements. Enter into any agreement or permit or
suffer any Subsidiary to enter into any agreement containing any provision which
would be violated or breached by this Agreement or any of the transactions
contemplated hereby or by performance by the Company or any of its Subsidiaries
or any Guarantor of its obligations in connection therewith.
ARTICLE VI
DEFAULT
6.1 Events of Default. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived in accordance with Section 8.1:
(a) Nonpayment. The Company shall fail to pay when due any principal
of the Loans, or any reimbursement obligation under Section 3.3 (whether by
deemed disbursement of a Revolving Credit Loan or otherwise), or within 5 days
after becoming due, any interest on the Loans, any fees or any other amount
payable hereunder or under any Support Document;
(b) Misrepresentation. Any representation or warranty made by the
Company or any Guarantor in Article IV or in any Support Document or any other
certificate (including, without limitation, any Environmental Certificate),
report, financial statement or other document furnished by or on behalf of the
Company or any Guarantor in connection with this Agreement, shall prove to have
been incorrect in any material respect when made or deemed made;
(c) Certain Covenants. The Company shall fail to perform or
observe any term, covenant or agreement contained in Article V;
(d) Other Defaults. The Company or any Guarantor shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement or in any Support Document (including, without limitation, any
Environmental Certificate) and any such failure shall remain unremedied for 15
calendar days after notice thereof shall have been given to the Company or such
Guarantor, as the case may be, by the Administrative Agent (at the request of
any Bank);
(e) Other Indebtedness. The Company or any of its Subsidiaries shall
fail to pay any part of the principal of, the premium, if any, or the interest
on, or any other payment of money due under any of its Indebtedness (other than
Indebtedness hereunder), beyond any period of grace provided with respect
thereto, which individually or together with other such Indebtedness as to which
any such failure exists has an aggregate outstanding principal amount
Credit Agreement
57
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in excess of 1% of the Consolidated Net Worth of the Company at the time of such
failure; or the Company or any of its Subsidiaries fails to perform or observe
any other term, covenant or agreement contained in any agreement, document or
instrument evidencing or securing any such Indebtedness having such aggregate
outstanding principal amount, or under which any such Indebtedness was issued or
created, beyond any period of grace, if any, provided with respect thereto if
the effect of such failure is either (i) to cause, or permit the holders of such
Indebtedness (or a trustee on behalf of such holders) to cause, any payment in
respect of such Indebtedness to become due prior to its due date or (ii) to
permit the holders of such Indebtedness (or a trustee on behalf of such holders)
to elect a majority of the board of directors of the Company;
(f) Judgments. After the Effective Date, and excluding the
litigation on Schedule 4.5 hereto, one or more judgments or orders for the
payment of money in an aggregate amount of $1,000,000 in any fiscal year shall
be rendered against the Company or any of its Subsidiaries, or any other
judgment or order (whether or not for the payment of money) shall be rendered
against or shall affect the Company or any of its Subsidiaries which causes or
could cause a material adverse change in the business, properties, operations or
condition, financial or otherwise, of the Company or any of its Subsidiaries or
which does or could have a material adverse effect on the legality, validity or
enforceability of this Agreement, any promissory notes issued hereunder or any
Support Document, and either (i) such judgment or order shall have remained
unsatisfied and the Company or such Subsidiary shall not have taken action
necessary to stay enforcement thereof by reason of pending appeal or otherwise,
prior to the expiration of the applicable period of limitations for taking such
action or, if such action shall have been taken, a final order denying such stay
shall have been rendered, or (ii) enforcement proceedings shall have been
commenced by any creditor upon any such judgment or order;
(g) ERISA. The occurrence of a Reportable Event that results in or
could result in liability of the Company, any Subsidiary of the Company or any
ERISA Affiliate to the PBGC or to any Plan and such Reportable Event is not
corrected within 30 days after the occurrence thereof; or the occurrence of any
Reportable Event which could constitute grounds for termination of any Plan by
the PBGC or for the appointment by the appropriate United States District Court
of a trustee to administer any Plan and such Reportable Event is not corrected
within 30 days after the occurrence thereof; or the filing by the Company, any
Subsidiary of the Company or any ERISA Affiliate of a notice of intent to
terminate a Plan or the institution of other proceedings to terminate a Plan; or
the Company, any Subsidiary of the Company or any ERISA Affiliate shall fail to
pay when due any liability to the PBGC or to a Plan; or the PBGC shall have
instituted proceedings to terminate, or to cause a trustee to be appointed to
administer, any Plan; or any person engages in a Prohibited Transaction with
respect to any Plan which results in or could result in liability of the
Company, any Subsidiary of the Company, any ERISA Affiliate to make a required
installment or other payment to any Plan within the meaning of Section 302(f) of
ERISA or Section 412(n) of the Code that results in or could result in liability
of the Company, any Subsidiary of the Company or any ERISA Affiliate to the PBGC
or any
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Plan; or the withdrawal of the Company, any of its Subsidiaries or any ERISA
Affiliate from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA; or the Company, any of its
Subsidiaries or any ERISA Affiliate becomes an employer with respect to any
Multiemployer Plan without the prior written consent of the Required Banks;
(h) Insolvency, Etc. The Company or any of its Subsidiaries shall be
dissolved or liquidated (or any judgment, order or decree therefor shall be
entered), or shall generally not pay its debts as they 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 shall institute, or there
shall be instituted against the Company or any of its Subsidiaries, any
proceeding or case seeking to adjudicate it as bankrupt or insolvent or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief or protection 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
assets, rights, revenues or property, and, if such proceeding is instituted
against the Company or such Subsidiary and is being contested by the Company or
such Subsidiary, as the case may be, in good faith by appropriate proceedings,
such proceeding shall remain undismissed or unstayed for a period of 60 days; or
the Company or such Subsidiary shall take any action (corporate or other) to
authorize, consent to or further any of the actions described above in this
subsection;
(i) Support Documents. Any event of default described in any Support
Document shall have occurred and be continuing, or any material provision of any
Support Document shall at any time for any reason cease to be valid and binding
and enforceable against any obligor thereunder, or the validity, binding effect
or enforceability thereof shall be contested by any person, or any obligor shall
deny that it has any or further liability or obligation thereunder, or any
Support Document shall be terminated, invalidated or set aside, or be declared
ineffective or inoperative or in any way cease to give or provide to the Banks
and the Administrative Agent the benefits purported to be created thereby; or
(j) Control. A Change in Control shall occur.
6.2 Remedies.
(a) Upon the occurrence and during the continuance of any Event of
Default, the Administrative Agent may, with the consent of the Required Banks,
and, upon being directed to do so by the Required Banks, shall by notice to the
Company (i) terminate the Commitments or (ii) declare the outstanding principal
of, and accrued interest on, the Loans, all unpaid reimbursement obligations in
respect of drawings under Letters of Credit and all other amounts owing under
this Agreement to be immediately due and payable, or (iii) demand immediate
delivery of cash collateral, and the Company agrees to deliver such cash
collateral upon demand, in an amount equal to the maximum amount that may be
available to be drawn at any time prior
Credit Agreement
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to the stated expiry of all outstanding Letters of Credit, or any one or more of
the foregoing, whereupon the Commitments shall terminate forthwith and all such
amounts, including such cash collateral, shall become immediately due and
payable, as the case may be, provided that in the case of any event or condition
described in Section 6.1(h) with respect to the Company, the Commitments shall
automatically terminate forthwith and all such amounts, including such cash
collateral, shall automatically become immediately due and payable without
notice; in all cases without demand, presentment, protest, diligence, notice of
dishonor or other formality, all of which are hereby expressly waived. Such cash
collateral delivered in respect of outstanding Letters of Credit shall be
deposited in a special cash collateral account to be held by the Administrative
Agent as collateral security for the payment and performance of the Company's
obligations under this Agreement to the Banks and the Administrative Agent.
(b) The Administrative Agent may, with the consent of the Required
Banks, and, upon being directed to do so by the Required Banks, shall, in
addition to the remedies provided in Section 6.2(a), exercise and enforce any
and all other rights and remedies available to it or the Banks, whether arising
under this Agreement, any promissory notes issued hereunder or any Support
Document or under applicable law, in any manner deemed appropriate by the
Administrative Agent, including suit in equity, action at law, or other
appropriate proceedings, whether for the specific performance (to the extent
permitted by law) of any covenant or agreement contained in this Agreement or in
any promissory notes issued hereunder or any Support Document or in aid of the
exercise of any power granted in this Agreement, any promissory note issued
hereunder or any Support Document.
(c) Upon the occurrence and during the continuance of any Event of
Default, each Bank may, subject to Section 7.11, at any time and from time to
time, without notice to the Company (any requirement for such notice being
expressly waived by the Company) set off and apply against any and all of the
obligations of the Company now or hereafter existing under this Agreement,
whether owing to such Bank or any other Bank or the Administrative Agent, 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 Bank to or for
the credit or the account of the Company and any property of the Company from
time to time in possession of such Bank, irrespective of whether or not such
Bank shall have made any demand hereunder and although such obligations may be
contingent and unmatured. The Company hereby grants to the Banks and the
Administrative Agent a lien on and security interest in all such deposits,
indebtedness and property as collateral security for the payment and performance
of the obligations of the Company under this Agreement. The rights of such Bank
under this Section 6.2(c) are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Bank may
have.
(d) In addition to other amounts payable pursuant to this Agreement,
the Company confirms that it shall further pay all amounts required to be paid
pursuant to Section 3.9. The Company agrees that such amounts are a reasonable
pre-estimate of loss and not a
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penalty. Such amounts are payable as liquidated damages for the loss of bargain
and payment of any such amount shall not in any way reduce, affect or impair any
other obligations of the Company under this Agreement.
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE BANKS
7.1 Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement, any promissory note
issued hereunder and the Support Documents as are delegated to the
Administrative Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto. The provisions of this Article VII
are solely for the benefit of the Administrative Agent and the Banks, and the
Company shall not have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement,
the Administrative Agent shall act solely as agent of the Banks and does not
assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for the Company.
7.2 Administrative Agent and Affiliates. Chase, in its capacity as a
Bank hereunder shall have the same rights and powers hereunder as any other Bank
and may exercise or refrain from exercising the same as though it were not the
Administrative Agent. Chase and its Affiliates (and any Bank) may (without
having to account therefor to any Bank) accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Company or any Subsidiary of the Company as if it were not
acting as Administrative Agent hereunder, and may accept fees and other
consideration therefor without having to account for the same to the Banks.
7.3 Scope of Administrative Agent's Duties. The Administrative Agent
shall have no duties or responsibilities except those expressly set forth
herein, and shall not, by reason of this Agreement, have a fiduciary
relationship with any Bank, beyond the agency created herein and subject to the
terms herein, and no implied covenants, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or shall otherwise exist against
the Administrative Agent. As to any matters not expressly provided for by this
Agreement (including, without limitation, collection and enforcement actions
hereunder and under the Support Documents), the Administrative Agent shall not
be required to exercise any discretion or take any action, but the
Administrative Agent shall take such action or omit to take any action pursuant
to the reasonably written instructions of the Required Banks (or, to the extent
required by Section 8.1, all of the Banks) and may request instructions from the
Required Banks. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, pursuant to the written instructions of
the Required Banks, which instructions and any action or omission pursuant
thereto shall be binding upon all of the Banks; provided, however, that the
Administrative Agent shall not be required to act or omit to act if, in the
judgment of the
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Administrative Agent, such action or omission may expose the Administrative
Agent to personal liability or is contrary to this Agreement, any promissory
notes issued hereunder or the Support Documents or applicable law.
7.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely upon any certificate, notice, document or other
communication (including any cable, telegram, telex, facsimile transmission or
oral communication) reasonably believed by it to be genuine and correct and to
have been sent or given by or on behalf of a proper person. The Administrative
Agent may treat the payee of any promissory note issued hereunder as the holder
thereof. The Administrative Agent may employ agents (including, without
limitation, collateral agents) and may consult with legal counsel (who may be
counsel for the Company), independent public accounts and other experts selected
by it and shall not be liable to the Banks, except as to money or property
received by it or its authorized agents, for the negligence or misconduct of any
such agent selected by it with reasonable care or for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
7.5 Default. The Administrative Agent shall not be deemed to have
knowledge of the occurrence of any Default or Event of Default, unless the
Administrative Agent has actual knowledge or has otherwise received written
notice from a Bank or the Company specifying such Default or Event of Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
promptly give written notice thereof to the Banks. As used herein, "actual
knowledge" shall mean the actual knowledge of the responsible loan officer of
the Administrative Agent, obtained in administering the Company's account.
7.6 Liability of Administrative Agent. Neither the Administrative
Agent nor any of its directors, officers, agents, or employees shall be liable
to the Banks for any action taken or not taken by it or them in connection
herewith with the consent or at the request of the Required Banks or in the
absence of its or their own gross negligence or willful misconduct. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into or verify
(i) any recital, statement, warranty or representation contained in this
Agreement, any promissory note issued hereunder or any Support Document, or in
any certificate, report, financial statement or other document furnished in
connection with this Agreement, (ii) the performance or observance of any of the
covenants or agreements of the Company or any Guarantor, (iii) the satisfaction
of any condition specified in Article II, and (iv) the validity, effectiveness,
legal enforceability, value or genuineness of this Agreement, any promissory
notes issued hereunder or the Support Documents or any collateral subject
thereto or any other instrument or document furnished in connection herewith.
7.7 Nonreliance on Administrative Agent and Other Banks. Each Bank
acknowledges and agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed
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appropriate, made its own credit analysis of the Company and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decision in taking or not taking action under this Agreement. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Company or any Guarantor of this Agreement, any
promissory notes issued hereunder or the Support Documents or any other
documents referred to or provided for herein or to inspect the properties or
books of the Company or any Guarantor and, except for notices, reports and other
documents and information expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Bank with any information concerning the
affairs, financial condition or business of the Company or any of its
Subsidiaries which may come into the possession of the Administrative Agent or
any of its Affiliates.
7.8 Indemnification. The Banks agree to indemnify the Administrative
Agent (to the extent not reimbursed by the Company, but without limiting any
obligation of the Company to make such reimbursement), ratably according to the
respective principal amounts of the Advances then outstanding made by each of
them (or if no Advances are at the time outstanding, ratably according to the
respective amounts of their Commitments), from and against any and all claims,
damages, losses, liabilities, costs or expenses of any kind or nature whatsoever
(including, without limitation, fees and disbursements of counsel) 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 the transactions contemplated
hereby or any action taken or omitted by the Administrative Agent under this
Agreement, provided, however, that no Bank shall be liable for any portion of
such claims, damages, losses, liabilities, costs or expenses resulting from the
Administrative Agent's gross negligence or willful misconduct. Each Bank agrees
to reimburse the Administrative Agent promptly upon demand for its ratable share
of any amounts owing to the Administrative Agent by the Banks pursuant to this
Section. If the indemnity furnished to the Administrative Agent under this
Section shall, in the judgment of the Administrative Agent, be insufficient or
become impaired, the Administrative Agent may call for additional indemnity from
the Banks and cease, or not commence, to take any action until such additional
indemnity if furnished.
7.9 Resignation or Removal of Administrative Agent. The
Administrative Agent may resign as such at any time upon thirty days' prior
written notice to the Company and the Banks or may be removed for cause as such
upon vote of the Required Banks. In the event of any such resignation or
removal, the Required Banks shall, by an instrument in writing delivered to the
Company and the Administrative Agent, appoint a successor, with the consent of
the Company, which shall be a commercial bank organized under the laws of the
United States or any State thereof and having a combined capital and surplus of
at least $500,000,000. If a successor is not so appointed or does not accept
such appointment before the Administrative Agent's resignation or removal
becomes effective, the resigning or removed Administrative
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Agent may appoint a temporary successor to act until such appointment by the
Required Banks is made and accepted or if no such temporary successor is
appointed as provided above by the resigning or removed Administrative Agent,
the Administrative Agent agrees to continue to perform administrative duties
hereunder for a fee to be agreed upon at such time until such appointment by the
Required Banks is made and accepted. Any successor to the Administrative Agent
shall execute and deliver to the Company and the Banks an instrument accepting
such appointment and thereupon such successor Administrative Agent, without
further act, deed, conveyance or transfer, shall become vested with all of the
properties, rights, interests, powers, authorities and obligations of its
predecessor hereunder with like effect as if originally named as Administrative
Agent hereunder. Upon request of such successor Administrative Agent, the
Company and the resigning or removed Administrative Agent shall execute and
deliver such instruments of conveyance, assignment and further assurance and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in such successor Administrative Agent all such
properties, rights, interests, powers, authorities and obligations. The
provisions of this Article VII shall thereafter remain effective for such
resigning or removed Administrative Agent with respect to any actions taken or
omitted to be taken by such Administrative Agent while acting as the
Administrative Agent hereunder.
7.10 Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Company, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Banks of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Company shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.3(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
7.11 Sharing of Payments. The Banks agree among themselves that, in
the event that any Bank shall obtain payment in respect of any Revolving Credit
Advance or any other obligation owing to all of the Banks under this Agreement
through the exercise of a right of set-off, banker's lien, counterclaim or
otherwise in excess of its ratable share of payments received by all of the
Banks on account of the Revolving Credit Advances and other obligations (or if
no Revolving Credit Advances are outstanding, ratably according to the
respective amounts of the Commitments), such Bank shall promptly purchase from
the other Banks participations in such Revolving Credit Advances and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all of the Banks share such
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payment in accordance with such ratable shares. The Banks further agree among
themselves that if payment to a Bank obtained by such Bank through the exercise
of a right of set-off, banker's lien, counterclaim or otherwise as aforesaid
shall be rescinded or must otherwise be restored, each Bank which shall have
shared the benefit of such payment shall, by repurchase of participations
theretofore sold, return its share of that benefit to each Bank whose payment
shall have been rescinded or otherwise restored. The Company agrees that any
Bank so purchasing such a participation may, to the fullest extent permitted by
law, exercise all rights of payment, including set-off, banker's lien or
counterclaim, with respect to such participation as fully as if such Bank were a
holder of such Revolving Credit Advance or other obligation in the amount of
such participation. The Banks further agree among themselves that, in the event
that amounts received by the Banks and the Administrative Agent hereunder are
insufficient to pay all such obligations or insufficient to pay all such
obligations when due, the fees and other amounts owing to the Administrative
Agent in such capacity shall be paid therefrom before payment of obligations
owing to the Banks under this Agreement. Except as otherwise expressly provided
in this Agreement, if any Bank or the Administrative Agent shall fail to remit
to the Administrative Agent or any other Bank an amount payable by such Bank or
the Administrative Agent to the Administrative Agent or such other Bank pursuant
to this Agreement on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such amount is
due until the date such amount is paid to the Administrative Agent or such other
Bank at a rate per annum equal to the rate at which borrowings are available to
the payee in its overnight federal funds market. It is further understood and
agreed among the Banks and the Administrative Agent that if the Administrative
Agent or any Bank shall engage in any other transactions with the Company and
shall have the benefit of any collateral or security therefor which does not
expressly secure the obligations arising under this Agreement except by virtue
of a so-called dragnet clause or comparable provision, the Administrative Agent
or such Bank shall be entitled to apply any proceeds of such collateral or
security first in respect of the obligations arising in connection with such
other transaction before application to the obligations arising under this
Agreement.
7.12 Documentation Agent. The First National Bank of Chicago,
in its capacity as Documentation Agent, shall have no obligations, duties or
liabilities whatsoever under this Agreement.
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ARTICLE VIII
MISCELLANEOUS
8.1 Amendments, Etc. (a) No amendment, modification, termination or
waiver of any provision of this Agreement or any Support Document nor any
consent to any departure therefrom shall be effective unless the same shall be
in writing and signed by the Company and the Required Banks or by the Company
and the Administrative Agent with the written consent of the Required Banks;
provided that no such agreement shall (i) increase the Commitment of any Bank
without the written consent of such Bank, (ii) reduce the principal amount of
any Loan or Letter of Credit Advance or reduce the rate of interest thereon, or
reduce any fees or other amounts payable hereunder, without the written consent
of each Bank affected thereby, (iii) postpone the scheduled date of payment of
the principal amount of any Loan or Letter of Credit Advance, or any interest
thereon, or any fees or other amounts payable hereunder, or reduce the amount
of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment (other than an extension of the Termination Date
pursuant to the terms of Section 2.4(d)), without the written consent of each
Bank affected thereby, (iv) change any provision that would alter the pro rata
sharing of payments required hereunder, without the written consent of each
Bank, (v) change any of the provisions of this Section or the definition of
"Required Banks" or any other provision hereof specifying the number or
percentage of Banks required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Bank or (vi) provide for discharge of all or a substantial
portion of the Guarantors or release all or a substantial portion of the
collateral pledged pursuant the Pledge Agreement (other than in connection with
(A) a corporate reorganization in which the Company substitutes substantially
equivalent collateral or (B) a transaction permitted by Section 5.2(f) or (h)),
without the written consent of each Bank; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Bank or the Swing Line Bank hereunder without
the prior written consent of the Administrative Agent, the Issuing Bank or the
Swing Line Bank, as the case may be.
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(b) Any such amendment, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
8.2 Notices. (a) Except as otherwise provided in Section 8.2(c), all
notices and other communications hereunder shall be in writing and shall be
delivered or sent to (i) the Company at ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President and Chief
Financial Officer, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Treasurer, ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, (ii) the Administrative Agent at The Chase
Manhattan Bank, 1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Loan and Agency Services, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy
to The Chase Manhattan Bank, East ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇ and (iii) to any Bank,
at its respective address and numbers for notices set forth in its
Administrative Questionnaire, or to such other address as may be designated by
the Company, the Administrative Agent or any Bank by notice to the other parties
hereto. All notices and other communications shall be deemed to have been given
at the time of actual delivery thereof to such address, or if sent by certified
or registered mail, postage prepaid, to such address, on the third day after the
date of mailing, or in the case of telex notice, upon receipt of the appropriate
answerback, or, in the case of facsimile notice, upon receipt of a confirmation
mechanically produced by the facsimile machine, provided, however, that notices
to the Administrative Agent shall not be effective until received.
(b) Notices by the Company to the Administrative Agent with respect
to terminations or reductions of the Commitments pursuant to Section 2.2,
requests for Advances pursuant to Section 2.4, requests for continuations or
conversions of Loans pursuant to Section 2.7 and notices of prepayment pursuant
to Section 3.1 shall be irrevocable and binding on the Company.
(c) Any notice to be given by the Company to the Administrative
Agent pursuant to Sections 2.1(c), 2.4, 2.7 or 3.1 and any notice to be given by
the Administrative Agent or any Bank hereunder, may be given by telephone, and
all such notices given by the Company must be immediately confirmed in writing
in the manner provided in Section 8.2(a). Any such notice given by telephone
shall be deemed effective upon receipt thereof by the party to whom such notice
is to be given.
8.3 No Waiver By Conduct; Remedies Cumulative. No course of dealing
on the part of the Administrative Agent or any Bank, nor any delay or failure on
the part of the Administrative Agent or any Bank in exercising any right, power
or privilege hereunder, shall operate as a waiver of such right, power or
privilege or otherwise prejudice the Administrative Agent's or such Bank's
rights and remedies hereunder; nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or
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privilege. No right or remedy conferred upon or reserved to the Administrative
Agent or any Bank under this Agreement, any promissory note issued hereunder or
any Support Document is intended to be exclusive of any other right or remedy,
and every right and remedy shall be cumulative and in addition to every other
right or remedy granted thereunder or now or hereafter existing under any
applicable law. Every right and remedy granted by this Agreement, any promissory
note issued hereunder or any Support Document or by applicable law to the
Administrative Agent or any Bank may be exercised from time to time and as often
as may be deemed expedient by the Administrative Agent or any Bank and, unless
contrary to the express provisions of this Agreement, any promissory note issued
hereunder or any Support Document, irrespective of the occurrence or continuance
of any Default or Event of Default.
8.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of the Company or any
Guarantor made herein or in any Support Document or in any certificate, report,
financial statement or other document furnished by or on behalf of the Company
or any Guarantor in connection with this Agreement shall be deemed to be
material and to have been relied upon by the Banks, notwithstanding any
investigation heretofore or hereafter made by any Bank or on such Bank's behalf,
and those covenants and agreements of the Company set forth in Sections 3.7, 3.9
and 8.5 shall survive the repayment in full of the Advances and the termination
of the Commitments.
8.5 Expenses; Indemnification. (a) The Company agrees to pay, or
reimburse the Administrative Agent for the payment of, on demand, (i) the
reasonable fees and expenses of counsel to the Administrative Agent, including
without limitation the fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, in
connection with the preparation, execution, delivery and administration of this
Agreement, any promissory notes issued hereunder, the Support Documents and the
consummation of the transactions contemplated hereby, and in connection with
advising the Administrative Agent as to its rights and responsibilities with
respect hereto and thereto, and in connection with any amendments, waivers or
consents in connection therewith and (ii) all stamp and other taxes and fees
payable or determined to be payable in connection with the execution, delivery,
filing or recording of this Agreement, any promissory notes issued hereunder,
the Support Documents and the consummation of the transactions contemplated
hereby, and any and all liabilities with respect to or resulting from any delay
in paying or omitting to pay such taxes or fees, and (iii) all reasonable costs
and expenses of the Administrative Agent and the Banks (including reasonable
fees and expenses of counsel and whether incurred through negotiations, legal
proceedings or otherwise) in connection with any Default or Event of Default or
the enforcement of, or the exercise or preservation of any rights under, this
Agreement, any promissory note issued hereunder or any Support Document or in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement and (iv) all reasonable costs and expenses of the
Issuing Bank, the Administrative Agent and the Banks (including reasonable fees
and expenses of counsel) in connection with any action or proceeding relating to
a court order, injunction or other process or decree restraining or seeking to
restrain the Issuing Bank from paying any amount under, or otherwise relating in
any
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▇▇▇ to, any Letter of Credit and any and all costs and expenses which any of
them may incur relative to any payment under any Letter of Credit.
(b) The Company hereby indemnifies and agrees to hold harmless the
Issuing Bank, the Banks and the Administrative Agent, and their respective
officers, directors, employees and agents, from and against any and all claims,
damages, losses, liabilities, costs or expenses of any kind or nature whatsoever
which the Issuing Bank, the Banks or the Administrative Agent or any such person
may incur or which may be claimed against any of them by reason of or in
connection with any Letter of Credit, and neither the Issuing Bank, any Bank or
the Administrative Agent nor any of their respective officers, directors,
employees or agents shall be liable or responsible for: (i) the use which may be
made of any Letter of Credit or for any acts or omissions of any beneficiary in
connection therewith; (ii) the validity, sufficiency or genuineness of documents
or of any endorsement thereon, even if such documents should in fact prove to be
in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the Issuing Bank to the beneficiary under any Letter of Credit
against presentation of documents which do not comply with the terms of any
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to such Letter of Credit; (iv) any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit; or (v) any
other event or circumstance whatsoever arising in connection with any Letter of
Credit; provided, however, that the Company shall not be required to indemnify
the Issuing Bank and such other persons, and the Issuing Bank shall be liable to
the Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or incidental, damages suffered by the Company which were caused
by (A) the Issuing Bank's wrongful dishonor of any Letter of Credit after the
presentation to it by the beneficiary thereunder of a draft or other demand for
payment and other documentation strictly complying with the terms and conditions
of such Letter of Credit, or (B) the Issuing Bank's payment to the beneficiary
under any Letter of Credit against presentation of documents which do not comply
with the terms of such Letter of Credit to the extent, but only to the extent,
that such payment constitutes gross negligence or wilful misconduct of the
Issuing Bank. It is understood that in making any payment under a Letter of
Credit the Issuing Bank will rely on documents presented to it under such Letter
of Credit as to any and all matters set forth therein without further
investigation and regardless of any notice or information to the contrary, and
such reliance and payment against documents presented under a Letter of Credit
substantially complying with the terms thereof shall not be deemed gross
negligence or wilful misconduct of the Issuing Bank in connection with such
payment. It is further acknowledged and agreed that the Company may have rights
against the beneficiary or others in connection with any Letter of Credit with
respect to which the Issuing Bank is alleged to be liable and it shall be a
precondition of the assertion of any liability of the Issuing Bank under this
Section that the Company shall first have exhausted all remedies in respect of
the alleged loss against such beneficiary and any other parties obligated or
liable in connection with such Letter of Credit and any related transactions.
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(c) The Company hereby indemnifies and agrees to hold harmless the
Banks and the Administrative Agent, and their respective officers, directors,
employees and agents, from and against any and all claims, damages, losses,
liabilities, costs or expenses of any kind or nature whatsoever (including
reasonable attorneys fees and disbursements incurred in connection with any
investigative, administrative or judicial proceeding whether or not such person
shall be designated as a party thereto) which the Banks or the Administrative
Agent or any such person may incur or which may be claimed against any of them
by reason of or in connection with entering into this Agreement or the
transactions contemplated hereby; provided, however, that the Company shall not
be required to indemnify any such Bank and the Administrative Agent or such
other person, to the extent, but only to the extent, that such claim, damage,
loss, liability, cost or expense is attributable to the gross negligence or
willful misconduct of such Bank or the Administrative Agent, as the case may be.
8.6 Successors and Assigns. (a) This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, provided that the Company may not, without the prior consent of the
Banks, assign its rights or obligations hereunder or under any promissory note
issued hereunder or any Support Document and the Banks shall not be obligated to
make any Advance hereunder to any entity other than the Company.
(b) Any Bank may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment to a Bank or an Affiliate of a Bank, each of the
Company and the Administrative Agent (and, in the case of an assignment of all
or a portion of a Commitment or any Bank's obligations in respect of Letter of
Credit Advances or Swing Line Loans, the Issuing Bank and the Swing Line Bank)
must give its prior written consent to such assignment (which consent shall not
be unreasonably withheld), (ii) except in the case of an assignment to a Bank or
an Affiliate of a Bank or an assignment of the entire remaining amount of the
assigning Bank's Commitment, the amount of such assignment shall be a multiple
of $1,000,000, the amount of the Commitment of the assigning Bank subject to
each such assignment shall not be less than $10,000,000, and, after giving
effect to such assignment, the assigning Bank's Commitment shall not be less
than $10,000,000, in each case determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent, unless each of the Company and the Administrative Agent otherwise
consent, (iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Bank's rights and obligations under this
Agreement, except that this clause (iii) shall not apply to rights in respect of
outstanding Competitive Loans, (iv) the parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500 (provided that no such
processing and recordation fee shall be required in connection with an
assignment made pursuant to Section 3.10(b)), and (v) the assignee, if it shall
not be a Bank, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the
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Company otherwise required under this paragraph shall not be required if an
Event of Default under Section 6.1(h) has occurred and is continuing. Upon
acceptance and recording pursuant to paragraph (d) of this Section 8.6, from and
after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Bank under this Agreement, and the assigning Bank thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Bank's rights and obligations under
this Agreement, such Bank shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 3.7, 3.9 and 8.5). Any assignment or
transfer by a Bank of rights or obligations under this Agreement that does not
comply with this paragraph (b) shall be treated for purposes of this Agreement
as a sale by such Bank of a participation in such rights and obligations in
accordance with paragraph (e) of this Section 8.6.
(c) The Administrative Agent, acting for this purpose as an agent of
the Company, shall maintain at one of its offices in The City of New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitment of, and
principal amount of the Advances owing to, each Bank pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Company, the Administrative Agent, the Issuing Bank and the
Banks may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Bank hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company, the Issuing Bank and any Bank, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Bank and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Bank
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section 8.6 and any written consent to such assignment required by
paragraph (b) of this Section 8.6, the Administrative Agent shall accept such
Assignment and Acceptance, record the information contained therein in the
Register and give prompt notice thereof to the Company. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any Bank may, without the consent of the Company, the
Administrative Agent, the Issuing Bank or the Swing Line Bank, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Bank's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Company, the
Administrative Agent, the Issuing Bank, the Swing Line Bank and the other Banks
shall continue to deal solely and directly with such Bank in connection with
such
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Bank's rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Bank sells such a participation shall provide that such Bank
shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Bank will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 8.1 that affects such Participant.
Subject to paragraph (f) of this Section 8.6, the Company agrees that each
Participant shall be entitled to the benefits of Sections 3.7, 3.9 and 8.5 to
the same extent as if it were a Bank and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 8.6.
(f) A Participant shall not be entitled to receive any greater
payment under Section 3.7 or 3.9 than the applicable Bank would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent.
(g) Any Bank may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Bank, including any such pledge or assignment to a Federal Reserve Bank,
and this Section 8.6 shall not apply to any such pledge or assignment of a
security interest; provided that no such pledge or assignment of a security
interest shall release a Bank from any of its obligations hereunder or
substitute any such assignee for such Bank as a party hereto.
(h) The Company shall not be liable for any costs or expenses of any
Bank in effecting any participation or assignment under this Section 8.6.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.8 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Company hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in
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any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Bank may otherwise have to bring any action or proceeding relating to
this Agreement against the Company or its properties in the courts of any
jurisdiction.
(c) The Company hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section 8.8. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 8.2. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
8.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
8.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any person, or which such person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such person, whether or not expressly
specified in such provision.
8.11 Integration and Severability. This Agreement embodies the
entire agreement and understanding between the Company and the Administrative
Agent and the Banks, and supersedes all prior agreements and understandings,
relating to the subject matter hereof. In case any one or more of the
obligations of the Company under this Agreement, any promissory notes issued
hereunder or any Support Document shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Company shall not in any way be affected or impaired thereby,
and such invalidity, illegality or unenforceability in one jurisdiction shall
not affect the validity, legality or enforceability of the obligations of the
Company under this Agreement, any promissory notes issued hereunder or any
Support Document in any other jurisdiction.
8.12 WAIVER OF JURY TRIAL. EACH OF THE BANKS, THE ADMINISTRATIVE
AGENT AND THE COMPANY, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF
THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF
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THIS AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THEM. NONE OF THE BANKS, THE
ADMINISTRATIVE AGENT AND THE COMPANY SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM
OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE
PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR
RELINQUISHED BY THE BANKS, THE ADMINISTRATIVE AGENT OR THE COMPANY EXCEPT BY A
WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM. IT IS INTENDED THAT THIS WAIVER
SHALL APPLY TO ANY COUNTERCLAIMS, RIGHTS AND DEFENSES IN CONNECTION THEREWITH.
8.13 Additional Banks. Additional lenders (each, an "Additional
Bank") may also become Banks hereunder and the aggregate amount of the
Commitments hereunder shall increase accordingly, with the prior written consent
of the Company, each Bank and the Agent, by executing an Assumption Agreement
substantially in the form of Exhibit G hereto. Immediately upon the
effectiveness of any such Assumption Agreement, the Company shall (x) borrow
Eurocurrency Rate Loans and Floating Rate Loans from the Additional Bank(s)
executing such Assumption Agreement and prepay Eurocurrency Rate Loans and
Floating Rate Loans owing to the Banks other than such Additional Bank(s), in
such amounts and in such Permitted Currencies that, after giving effect thereto,
all of the Eurocurrency Rate Loans denominated in the same Permitted Currency
and all of the Floating Rate Loans shall be allocated among the Banks (including
the Additional Bank(s)) pro rata in accordance with the amounts of their
respective Commitments and (y) pay all accrued interest on any Loans so prepaid
and all amounts owing under Section 3.9 by reason of any such prepayment.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the day and year first written above.
CAMBREX CORPORATION
By _____________________________________
Title: Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent
By _____________________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Documentation Agent
By _____________________________________
Title:
FLEET BANK, NATIONAL ASSOCIATION
By _____________________________________
Title:
SUMMIT BANK
Credit Agreement
75
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By _____________________________________
Title:
WACHOVIA BANK, N.A.
By _____________________________________
Title:
BHF-BANK AKTIENGESELLSCHAFT
By _____________________________________
Title:
By _____________________________________
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By _____________________________________
Title:
THE BANK OF NOVA SCOTIA
By _____________________________________
Title:
Credit Agreement
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CREDIT LYONNAIS NEW YORK BRANCH
By _____________________________________
Title:
FIRST UNION NATIONAL BANK
By _____________________________________
Title:
PNC BANK, NATIONAL ASSOCIATION
By _____________________________________
Title:
THE BANK OF NEW YORK
By _____________________________________
Title:
Credit Agreement
77
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By _____________________________________
Title:
By _____________________________________
Title:
CORESTATES BANK, N.A.
By _____________________________________
Title:
MELLON BANK, N.A.
By _____________________________________
Title:
THE SAKURA BANK, LIMITED
By _____________________________________
Title:
Credit Agreement
▇▇
- ▇▇ -
▇▇▇▇▇ ▇▇▇▇▇▇ BANK AND TRUST
COMPANY
By _____________________________________
Title:
SUNTRUST BANK, ATLANTA
By _____________________________________
Title:
By _____________________________________
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇.▇.,
▇▇▇ ▇▇▇▇ BRANCH
By _____________________________________
Title:
By _____________________________________
Title:
Credit Agreement
▇▇
- ▇▇ -
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇
By _____________________________________
Title:
By _____________________________________
Title:
Credit Agreement
80
SCHEDULE 2.1
COMMITMENTS
Bank Commitment
---- ----------
The Chase Manhattan Bank $35,000,000
First National Bank of Chicago 35,000,000
Fleet Bank, National Association 28,000,000
Summit Bank 28,000,000
Wachovia Bank, N.A. 28,000,000
BHF-Bank Aktiengesellschaft 23,000,000
Bank of America National Trust and Savings Association 23,000,000
The Bank of Nova Scotia 23,000,000
Credit Lyonnais New York Branch 23,000,000
First Union National Bank 23,000,000
PNC Bank, National Association 23,000,000
The Bank of New York 14,000,000
Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A. "Rabobank Nederland", New York Branch 14,000,000
CoreStates Bank, N.A. 14,000,000
Mellon Bank, N.A. 14,000,000
The Sakura Bank, Limited 14,000,000
State Street Bank and Trust Company 14,000,000
SunTrust Bank, Atlanta 14,000,000
Banca Nazionale del Lavoro S.p.A., New York Branch 5,000,000
Istituto Bancario San Paolo di Torino SpA 5,000,000
------------
$400,000,000