EXHIBIT 4.3(b)
FACILITY A 364-DAY
COMPETITIVE ADVANCE, REVOLVING CREDIT
AND GUARANTY AGREEMENT
dated as of
May 25, 2001
among
DENTSPLY INTERNATIONAL INC., as Borrower,
THE GUARANTORS NAMED HEREIN,
THE BANKS NAMED HEREIN,
ABN AMRO BANK N.V., as Administrative Agent and
Arranger and Bookrunner
and
CREDIT SUISSE FIRST BOSTON and FIRST UNION NATIONAL BANK and
BANK OF TOKYO-MITSUBISHI TRUST ▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
COMPANY, as Co-Syndication Agents as Co-Documentation Agents
===================================================================
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TABLE OF CONTENTS
Page
INTRODUCTORY STATEMENT............................................1
ARTICLE I Definitions............................................1
SECTION 1.01. Definitions..................................1
SECTION 1.02. Accounting Terms and Determinations..........14
SECTION 1.03. Exchange Rates..............................14
ARTICLE II Loans.................................................15
SECTION 2.01. Commitments.................................15
SECTION 2.02. Loans.......................................15
SECTION 2.03. Use of Proceeds.............................16
SECTION 2.04. Competitive Bid Procedure...................16
SECTION 2.05. Revolving Credit Borrowing Procedure........18
SECTION 2.06. [RESERVED]..................................19
SECTION 2.07. Fees........................................19
SECTION 2.08. Notes; Repayment of Loans...................20
SECTION 2.09. Interest on Loans...........................20
SECTION 2.10. Interest on Overdue Amounts.................21
SECTION 2.11. Alternate Rate of Interest..................21
SECTION 2.12. Termination, Reduction, Increase and
Extension of Commitments..............................21
SECTION 2.13. Prepayment of Loans.........................23
SECTION 2.14. Eurodollar Reserve Costs....................24
SECTION 2.15. Reserve Requirements; Change in Circumstances24
SECTION 2.16. Change in Legality..........................25
SECTION 2.17. Indemnity...................................26
SECTION 2.18. Pro Rata Treatment..........................26
SECTION 2.19. Right of Setoff.............................27
SECTION 2.20. Sharing of Setoffs..........................27
SECTION 2.21. Payments....................................27
▇▇▇▇▇▇▇ ▇.▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Withholding...................28
SECTION 2.23. Participations; Assignments.................29
SECTION 2.24. Taxes.......................................33
ARTICLE III..........................Representations and Warranties
33
SECTION 3.01. Organization; Corporate Powers..............33
SECTION 3.02. Authorization...............................34
SECTION 3.03. Enforceability..............................34
SECTION 3.04. Governmental Approvals......................34
SECTION 3.05. Financial Statements and Condition..........34
SECTION 3.07. Reserved....................................34
SECTION 3.07. Title to Properties.........................34
SECTION 3.08. Litigation..................................35
SECTION 3.09. Tax Returns.................................35
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SECTION 3.10. Agreements..................................35
SECTION 3.11. Employee Benefit Plans......................35
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act;
Federal Power Act.....................................36
SECTION 3.13. Federal Reserve Regulations.................36
SECTION 3.14. Defaults; Compliance with Laws..............36
SECTION 3.15. Use of Proceeds.............................37
SECTION 3.16. Affiliated Companies........................37
SECTION 3.17. Environmental Liabilities...................37
SECTION 3.18. Disclosure..................................38
SECTION 3.19. Insurance...................................38
ARTICLE IV Conditions of Lending.................................38
SECTION 4.01. All Borrowings..............................38
SECTION 4.02. Closing Date................................39
ARTICLE V Affirmative Covenants.................................40
SECTION 5.01. Corporate Existence.........................40
SECTION 5.02. Maintenance of Property.....................40
SECTION 5.03. Insurance...................................40
SECTION 5.04. Obligations and Taxes.......................41
SECTION 5.05. Financial Statements; Reports, etc..........41
SECTION 5.06. Defaults and Other Notices..................42
SECTION 5.07. ERISA.......................................42
SECTION 5.08. Access to Premises and Records..............43
SECTION 5.09. Compliance with Laws, etc...................43
SECTION 5.10. Security Interests..........................43
SECTION 5.11. Subsidiary Guarantors.......................43
SECTION 5.12. Environmental Laws..........................44
SECTION 5.13. Senior Debt Status..........................44
ARTICLE VI Negative Covenants....................................45
SECTION 6.01. Liens.......................................45
SECTION 6.02. Indebtedness................................46
SECTION 6.03. Mergers, Consolidations, Sales of Assets and
Acquisitions..........................................46
SECTION 6.04. Change of Business..........................47
SECTION 6.05. Transactions with Affiliates................47
SECTION 6.06. Sale and Leaseback..........................47
SECTION 6.07. Dividends by Subsidiaries...................48
SECTION 6.08. Amendments to Certain Documents.............48
SECTION 6.09. Minimum Consolidated Net Worth..............48
SECTION 6.10. Interest Coverage...........................48
SECTION 6.11. Debt Ratio..................................48
SECTION 6.12. Fiscal Year.................................48
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ARTICLE ▇▇▇.▇▇▇▇▇▇ of Default....................................48
ARTICLE VIII GUARANTY.........................................51
SECTION 8.01. Guarantee...................................
SECTION 8.02. No Impairment of Guaranty...................52
SECTION 8.03. Continuation and Reinstatement, etc.........52
SECTION 8.04. Payment, etc................................52
SECTION 8.05. Benefit to Guarantors.......................52
SECTION 8.06. Modification to Conform to Law..............53
SECTION 8.07. Additional Guarantors.......................53
ARTICLE IX Administrative Agent..................................53
SECTION 9.01. Appointment of Administrative Agent.........53
SECTION 9.02. Exculpation.................................54
SECTION 9.03. Consultation with Counsel...................54
SECTION 9.04. The Administrative Agent, Individually......54
SECTION 9.05. Reimbursement and Indemnification...........54
SECTION 9.06. Resignation.................................55
ARTICLE X Miscellaneous.........................................55
SECTION 10.01. Notices....................................55
SECTION 10.02. No Waivers; Amendments.....................55
SECTION 10.03. Applicable Law; Submission to Jurisdiction;
Service of Process; Waiver of Jury Trial..............56
SECTION 10.04. Expenses; Documentary Taxes................56
SECTION 10.05. Indemnity..................................57
SECTION 10.06. Successors and Assigns.....................57
SECTION 10.07. Survival of Agreements, Representations and
Warranties, etc.......................................57
SECTION 10.08. Severability...............................57
SECTION 10.09. Cover Page and Section Headings............58
SECTION 10.10. Counterparts, Integration, Telecopy
Signatures............................................58
SECTION 10.11. Confidentiality............................58
SECTION 10.12. Conversion of Currencies...................59
SECTION 10.13. European Monetary Union...................59
SECTION 10.14. Documentation and Syndication Agents......59
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EXHIBITS
A-1 Form of Competitive Bid Request
A-2 Form of Notice of Competitive Bid Request
A-3 Form of Competitive Bid
A-4 Form of Competitive Bid Accept/Reject Letter
A-5 Form of Revolving Credit Borrowing Request
B-1 Form of Competitive Note
B-2 Form of Revolving Credit Note
C Form of Contribution Agreement
D Form of Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
E Form of Assignment and Acceptance
F Form of Draft Intercreditor Agreement
G Form of Joinder and Assumption Agreement
H Form of Compliance Certificate
SCHEDULES
1.01 Guarantors
2.01 Commitments, Addresses for Notices
3.16 Affiliates
3.17 Environmental Liabilities
4.02 Consents
6.01 Liens
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THIS FACILITY A 364-DAY COMPETITIVE ADVANCE, REVOLVING
CREDIT AND GUARANTY AGREEMENT dated as of May 25, 2001, is made
by and among DENTSPLY INTERNATIONAL INC., a Delaware corporation
(the "Borrower"), the Guarantors (as hereinafter defined), the
Banks from time to time party hereto (individually a "Bank" and
collectively the "Banks"), ABN AMRO BANK N.V., as Administrative
Agent for the Banks (the "Administrative Agent") and arranger and
bookrunner, and CREDIT SUISSE FIRST BOSTON and BANK OF
TOKYO-MITSUBISHI TRUST COMPANY, as Co-Syndication Agents (the
"Co-Syndication Agents"), and FIRST UNION NATIONAL BANK and ▇▇▇▇▇▇
TRUST AND SAVINGS BANK, as Co-Documentation Agents (the
"Co-Documentation Agents").
INTRODUCTORY STATEMENT
All terms not otherwise defined herein are as defined in
Article I hereof.
The Borrower has requested that the Banks extend credit to
the Borrower in order to enable the Borrower to borrow on a
standby revolving credit basis a principal amount not in excess
of $250,000,000 at any time outstanding.
The Borrower has also requested that the Banks provide a
procedure pursuant to which the Borrower may invite the Banks to
bid on an uncommitted basis on short-term borrowings by the
Borrower.
The proceeds of all such borrowings are to be used (a) to
refinance outstanding Indebtedness of the Borrower under that
364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement dated as of October 23, 1997, as amended, modified, and
supplemented through the date hereof, among the Borrower, the
guarantors and banks, party thereto, and The Chase Manhattan
Bank, as Agent, and ABN AMRO Bank N.V., as Documentation Agent,
(b) for general working capital and corporate purposes, including
acquisitions in the industry of Borrower or any of its Material
Subsidiaries, and (c) to facilitate borrowings by offshore
Subsidiaries.
To provide assurance for the repayment of the Loans and all
related interest, fees, charges, expenses, reimbursement
obligations and other amounts payable with respect thereto, the
Guarantors will guaranty the Obligations pursuant to Article VIII
hereof.
Accordingly, the Borrower, the Guarantors, the Banks and the
Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement,
the following words and terms shall have the respective meanings
specified below:
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"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the Alternate Base
Rate in accordance with the provisions of Article II.
"Administrative Agent" shall mean ABN AMRO Bank N.V.,
in its capacity as agent for the Banks hereunder and not in its
individual capacity as a Bank, or such successor Administrative
Agent as may be appointed pursuant to Section 9.06.
"Affiliate" shall mean, with respect to the person in
question, (a) any person (including any member of the immediate
family of any such natural person) which (i) directly or
indirectly beneficially owns or controls 10% or more of the total
voting power of shares of capital stock having the right to vote
for directors under ordinary circumstances (if such person is a
corporation), (ii) is a general partner (if such person is a
partnership) or (iii) is otherwise empowered, by contract, voting
trust or otherwise, to direct the business or affairs of such
person, (b) any person controlling, controlled by or under common
control with any such person (within the meaning of Rule 405
under the Securities Act of 1933), and (c) any director, general
partner or executive officer of any such person.
"Agreement" shall mean this Facility A 364-Day
Competitive Advance, Revolving Credit and Guaranty Agreement
dated as of May 25, 2001, among DENTSPLY International Inc., as
Borrower, the Guarantors (as hereinafter defined), the Banks from
time to time party hereto, ABN AMRO Bank N.V., as Administrative
Agent and arranger and bookrunner, and Credit Suisse First Boston
and Bank Of Tokyo-Mitsubishi Trust Company, as Co-Syndication
Agents, and First Union National Bank and ▇▇▇▇▇▇ Trust And
Savings Bank, as Co-Documentation Agents, as the same may be
amended, modified or supplemented from time to time.
"Alternate Base Rate" shall mean for any day, a rate
per annum (rounded upwards, if not already a whole multiple of
1/16 of 1%, to the next higher 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day or (b) the Federal
Funds Effective Rate in effect for such day plus 1/2 of 1%. For
purposes hereof, the term "Prime Rate" shall mean the rate per
annum announced by ABN AMRO Bank N.V. from time to time as its
prime rate in effect at its principal office in Chicago,
Illinois; each change in the Prime Rate shall be effective on the
date such change is announced as effective. "Federal Funds
Effective Rate" shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by
the Administrative Agent from three federal funds brokers of
recognized standing selected by it. Any change in the Alternate
Base Rate due to a change in the Federal Funds Effective Rate
shall be effective on the effective date of such change in the
Federal Funds Effective Rate. If for any reason the
Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to
obtain sufficient publications or quotations in accordance with
the terms hereof, the Alternate Base Rate shall be the Prime Rate
until the circumstances giving rise to such inability no longer
exist.
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"Alternate Currency" means, with respect to any Loan,
the euro, British Pounds Sterling, Swiss Francs, Deutsche Marks
and any other currency requested by the Borrower and approved by
each Bank that is freely tradeable and exchangeable into Dollars
in the London market and for which an Exchange Rate can be
determined by reference to the Reuters World Currency Page or
another publicly available service for displaying exchange rates.
"Applicable Commitment Percentage" means, with respect
to any Bank, the percentage of the total Commitments represented
by such Bank's Commitment. If the Commitments have terminated or
expired, the Applicable Commitment Percentages shall be
determined based upon the Commitments most recently in effect,
giving effect to any assignments.
"Applicable Percentage" shall mean on any date, with
respect to the Facility Fee or the Usage Fee or the Loans
comprising any LIBOR Revolving Credit Borrowing, as the case may
be, the corresponding applicable percentage set forth in the
table below based upon the Debt Rating of the Borrower
(determined in accordance with Section 2.09(e)):
----------------------------------------------------
Facility LIBOR: Usage
Debt Rating: Fee: Applicable Fee:
S&P and ▇▇▇▇▇'▇ Applicable Percentage Applicable
Respectively Percentage Percentage
----------------------------------------------------
----------------------------------------------------
A or above, or A2 7.5 32.5 10.0
or above
----------------------------------------------------
----------------------------------------------------
A- or A3 8.0 42.0 12.5
----------------------------------------------------
----------------------------------------------------
BBB+ or Baa1 10.0 52.5 12.5
----------------------------------------------------
----------------------------------------------------
BBB or Baa2 15.0 60.0 15.0
----------------------------------------------------
----------------------------------------------------
BBB- or Baa3 25.0 75.0 25.0
----------------------------------------------------
----------------------------------------------------
BB+ or Ba1 35.0 115.0 25.0
----------------------------------------------------
BB or below or 50.0 175.0 25.0
unrated, or Ba2
or below or
unrated
----------------------------------------------------
For purposes of determining the Applicable Percentage:
(a) If a difference exists in the Debt Ratings of
▇▇▇▇▇'▇ and Standard & Poor's, the higher of such Debt Ratings
will determine the relevant pricing level,
(b) Any change in the Applicable Percentage shall
become effective five (5) Business Days after any public
announcement of the change in the Debt Rating.
"Assignment and Acceptance" shall mean an agreement in
the form of Exhibit E hereto entered into pursuant to
Section 2.23, executed by the assignor, assignee and other parties
as contemplated thereby.
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"Bank" and "Banks" shall mean the financial
institutions listed on Schedule 2.01 and any assignee of a Bank
pursuant to Section 2.23(b) or (c).
"Board" shall mean the Board of Governors of the
Federal Reserve System of the United States.
"Borrowing" shall mean a group of Loans of a single
Interest Rate Type made by the Banks (or in the case of a
Competitive Borrowing, by the Bank or Banks whose Competitive
Bids have been accepted pursuant to Section 2.04) on a single
date and as to which a single Interest Period is in effect.
"Business Day" shall mean any day not a Saturday,
Sunday or legal holiday in the States of Illinois or New York or
the Commonwealth of Pennsylvania on which banks and the Federal
Reserve Bank of New York are open for business in New York City;
provided, however, that when used in connection with a LIBOR Loan
the term "Business Day" shall also exclude any day on which banks
are not open for dealings in deposits in the relevant currency in
the London interbank market and when used in connection with a
LIBOR Loan denominated in euro, the term "Business Day" shall
also exclude any day which is not a TARGET Day.
"Calculation Date" shall mean the last Business Day of
each calendar quarter, provided that during the continuance of an
Event of Default, "Calculation Date" shall mean each Business Day
during which such Event of Default continues to exist.
"Capitalized Lease Obligations" shall mean any
obligation of a Person as lessee of any property (real, personal
or mixed), which, in accordance with generally accepted
accounting principles, is or should be accounted for as a capital
lease on the balance sheet of such Person.
"Change in Law" means (a) the adoption of any law,
rule, or regulation after the date of this Agreement, (b) any
change in any law, rule, or regulation or in the interpretation
or application thereof by any Governmental Authority after the
date if this Agreement or (c) compliance by any Bank or the
Issuing Bank (or for purposes of Section 2.16(b), by any lending
office of such Bank or by such Bank's or the Issuing Bank's
holding company, if any) with any request, guideline, or
directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.
"Closing Date" shall mean the date of the first
Borrowing under the Facility B Credit Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
the same shall be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the
commitment of such Bank hereunder as initially set forth on
Schedule 2.01 (and thereafter on Schedule 2.01 to the most recent
Assignment and Acceptance) as such Bank's Commitment may be
permanently terminated, reduced, increased or extended from time
to time pursuant to Section 2.12. Subject to Section 2.12, the
Commitments shall automatically and permanently terminate on the
Maturity Date.
"Competitive Bid" shall mean an offer by a Bank to make
a Competitive Loan pursuant to Section 2.04.
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"Competitive Bid Accept/Reject Letter" shall mean a
notification made by the Borrower pursuant to Section 2.04(d) in
the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any
Competitive Bid made by a Bank pursuant to Section 2.04(b),
(a) in the case of a LIBOR Loan, the Margin and (b) in the case of
a Fixed Rate Loan, the fixed rate of interest offered by the Bank
making such Competitive Bid.
"Competitive Bid Request" shall mean a request made
pursuant to Section 2.04 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing
consisting of a Competitive Loan or concurrent Competitive Loans
from the Bank or Banks whose Competitive Bids for such Borrowing
have been accepted by the Borrower under the bidding procedure
described in Section 2.04.
"Competitive Loan" shall mean a Loan from a Bank to the
Borrower pursuant to the bidding procedure described in
Section 2.04. Each Competitive Loan shall be a LIBOR Competitive
Loan or a Fixed Rate Loan.
"Competitive Loan Exposure" shall mean, with respect to
any Bank at any time, the aggregate principal amount of the
outstanding Competitive Loans of such Bank.
"Competitive Note" shall mean a promissory note of the
Borrower in the form of Exhibit B-1 executed and delivered as
provided in Section 2.08.
"Consolidated" shall mean, as applied to any financial
or accounting term, such term determined on a consolidated basis
in accordance with generally accepted accounting principles
(except as otherwise required herein) for the Borrower and each
Subsidiary which is a Consolidated Subsidiary of the Borrower.
"Consolidated EBITDA" shall mean for any period
"Operating income" as set forth in the DENTSPLY International
Inc. Consolidated Statements of Income, plus depreciation and
amortization (to the extent previously deducted), determined in
accordance with generally accepted accounting principles and in a
manner consistent with the accounting principles used to prepare
the audited DENTSPLY International Inc. Consolidated Statements
of Income for the year ended December 31, 2000, and delivered to
the Administrative Agent; provided that there shall be excluded:
(a) the income (or loss) from operations of any
person, accrued prior to the date it becomes a Subsidiary or
is merged into or consolidated with the person whose income
is being determined or a subsidiary of such person; and
(b) the income (or loss) from operations of any person
(other than a Subsidiary) in which the person whose
operating income is being determined or any subsidiary of
such person has an ownership interest, except to the extent
that any such income has actually been received by such
person in the form of cash dividends or similar
distributions.
"Consolidated Interest Coverage Ratio" shall mean, in
respect of any fiscal period of the Borrower, (a) Consolidated
EBITDA divided by (b) Consolidated Interest Expense.
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"Consolidated Interest Expense" shall mean, for any
fiscal period of the Borrower, without duplication of expense
among fiscal periods (a) the aggregate amount determined on a
Consolidated basis of (i) all interest on Indebtedness of the
Borrower and its Consolidated Subsidiaries accrued during such
period, (ii) all rentals imputed as interest accrued under
Capitalized Lease Obligations during such period by such person
and (iii) all amortization of discount and expense relating to
Indebtedness of the Borrower and its Consolidated Subsidiaries
which amortization was accounted for during such period,
(b) adjusted downward for capital gains and upward for capital
losses on maturing U.S. Treasury obligations and (c) adjusted
downward for interest income (to the extent not previously
excluded), as determined in accordance with generally accepted
accounting principles.
"Consolidated Net Income" shall mean the net income (or
net loss) of the Borrower and its Consolidated Subsidiaries for
the period in question (taken as a whole), as determined in
accordance with generally accepted accounting principles;
provided that there shall be excluded:
(a) the net income (or net loss) of any person,
accrued prior to the date it becomes a Subsidiary or is merged
into or consolidated with the person whose net income is being
determined or a subsidiary of such person; and
(b) the net income (or net loss) of any person (other
than a Subsidiary) in which the person whose net income is being
determined or any subsidiary of such person has an ownership
interest, except to the extent that any such income has actually
been received by such person in the form of cash dividends or
similar distributions.
"Consolidated Net Worth" shall mean, as at any date of
determination, the sum of the capital stock (less treasury stock)
and additional paid-in capital plus retained earnings (or minus
accumulated deficit) of the Borrower and its Consolidated
Subsidiaries on a Consolidated basis.
"Consolidated Subsidiary" means, in the case of the
Borrower at any date, any Subsidiary or other entity the accounts
of which are Consolidated with those of the Borrower in the
Consolidated financial statements of the Borrower as of such date.
"Consolidated Total Capitalization" shall mean the sum
of (a) Consolidated Total Indebtedness and (b) Consolidated Net
Worth.
"Consolidated Total Indebtedness" shall mean the
Consolidated Indebtedness of the Borrower and its Consolidated
Subsidiaries.
"Contribution Agreement" shall mean a Contribution
Agreement among the Borrower and the Guarantors substantially in
the form of Exhibit C hereto.
"Credit Exposure" means, in respect of any Bank, the
sum of such Bank's Revolving Credit Exposure and its Competitive
Loan Exposure.
"Debt Rating" shall mean the rating by each of Standard
& Poor's and ▇▇▇▇▇'▇ of the Borrower's senior unsecured long-term
debt which is not guarantied by any Person or subject to any
other credit enhancement.
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"Debt Ratio" shall mean the ratio of Consolidated Total
Indebtedness to Consolidated Total Capitalization.
"Default" shall mean an Event of Default or any event,
act or condition which with notice or lapse of time, or both,
would constitute an Event of Default.
"Des Plaines Lease" shall mean the Amended and Restated
Sale and Leaseback Agreement, dated as of August 1, 1991 between
▇▇▇▇▇▇▇▇▇ Partners I as Buyer and Midwest Dental Products
Corporation, as Seller.
"Dollar Equivalent" means
(a) as to any Loan denominated in Dollars, the
principal amount thereof, and
(b) as to any Loan denominated in an Alternate
Currency, the amount in Dollars which is equivalent to the
principal amount thereof, determined by the Administrative Agent
pursuant to Section 1.03(a) using the Exchange Rate with respect
to such Alternate Currency at the time in effect.
"Dollars", "dollars" and the symbol "$" shall mean the
lawful currency of the United States of America.
"Effective Date" shall mean the date on which the
conditions to borrowing set forth in Sections 4.01 and 4.02 are
first satisfied.
"Environmental Laws" shall mean all statutes,
ordinances, orders, rules and regulations relating to
environmental matters, including those relating to fines, orders,
injunctions, penalties, damages, contribution, cost recovery
compensation, losses or injuries resulting from the release or
threatened release of Hazardous Materials and to the generation,
use, storage, transportation, or disposal of Hazardous Materials
or in any manner applicable to the Borrower or any of the
Subsidiaries or any of their respective properties, including the
Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. ss. 9601 et seq.), the Hazardous Material
Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource
Conservation and Recovery Act (42 ▇.▇.▇.▇▇. 6901 et seq.), the
Federal Water Pollution Control Act (33 ▇.▇.▇.▇▇. 1251 et seq.),
the Clean Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. ss. 2601 et seq.), the
Occupational Safety and Health Act (29 ▇.▇.▇.▇▇. 651 et seq.) and
the Emergency Planning and Community Right-to-Know Act (42 U.S.C.
ss. 11001 et seq.), each as amended or supplemented, and any
analogous current or future federal, state or local statutes and
regulations promulgated pursuant thereto.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as the same may from time to time be
amended.
"ERISA Affiliate" shall mean with respect to the
Borrower, any trade or business (whether or not incorporated)
which is a member of a group of which the Borrower is a member
and which is under common control within the meaning of
Section 414 of the Code.
"ESOP" shall mean the DENTSPLY Employee Stock Ownership
Plan effective as of December 1, 1982 and restated as of
January 1, 1991.
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"Event of Default" shall mean any of the events
described in clauses (a) through (m) of Article VII.
"Exchange Rate" means, on any day, with respect to any
Alternate Currency, the rate at which such Alternate Currency may
be exchanged into Dollars, as set forth at approximately
11:00 a.m., London time, on such date on the Reuters World
Currency Page for such Alternate Currency. In the event that
such rate does not appear on any Reuters World Currency Page, the
Exchange Rate shall be determined by reference to the applicable
Bloomberg System page, or, in the event that such rate does not
appear on such page, such other publicly available service for
displaying exchange rates as may be agreed upon by the
Administrative Agent and the Borrower, or, in the absence of such
agreement, such Exchange Rate shall instead be the spot rate of
exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such Alternate
Currency are then being conducted, at or about 11:00 a.m., London
time, on such date for the purchase of Dollars for delivery
two Business Days later; provided that if at the time of any such
determination, for any reason, no such spot rate is being quoted,
the Administrative Agent may use any reasonable method it deems
appropriate to determine such rate, and such determination shall
be conclusive absent manifest error.
"Execution Date" shall mean the date of this Agreement.
"Facility B Credit Agreement" shall mean the
$250,000,000, Facility B Five-Year Competitive Advance, Revolving
Credit and Guaranty Agreement dated as of the date hereof among
the Borrower, the guarantors, the banks party thereto, ABN AMRO
Bank N.V., as administrative agent and arranger and bookrunner,
and Credit Suisse First Boston and Bank Of Tokyo-Mitsubishi Trust
Company, as Co-Syndication Agents, and First Union National Bank
and ▇▇▇▇▇▇ Trust And Savings Bank, as Co-Documentation Agents, as
amended, modified and supplemented from time to time.
"Facility Fee" shall have the meaning given such term
in Section 2.07 hereof.
"Fee Letter" shall mean that letter, dated as of March
19, 2001, given by Administrative Agent to, and executed by,
Borrower, as amended, modified, and supplemented from time to
time.
"Financial Officer" of any person shall mean its Senior
Vice President-Chief Financial Officer, Treasurer or Controller.
"Fixed Rate Borrowing" shall mean a Borrowing comprised
of Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan
bearing interest at a fixed percentage rate per annum (expressed
in the form of a decimal to no more than four decimal places)
specified by the Bank making such Loan in its Competitive Bid.
"Fundamental Documents" shall mean this Agreement, the
Contribution Agreement, the Competitive Notes, the Revolving
Credit Notes, and the Fee Letter.
"Governmental Authority" shall mean any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, or any central bank or court,
in each case whether of the United States or other jurisdiction,
or any political subdivision thereof.
D5
"Guarantors" shall mean all Material Subsidiaries which
are incorporated in the United States, all of which are listed on
Schedule1.01, and any other Subsidiaries of the Borrower which
become Guarantors pursuant to Section 5.11.
"Guaranty", "Guarantied" or to "Guaranty" as applied to
any obligation shall mean and include (a) a guaranty (other than
by endorsement of negotiable instruments for collection in the
ordinary course of business), directly or indirectly, in a
manner, of any part (to the extent of such part) or all of such
obligation and (b) an agreement, direct or indirect, contingent
or otherwise, and whether or not constituting a guaranty, the
intention or practical effect of which is to assure the payment
or performance (or payment of damages or compensation in the
event of nonperformance) of any part (to the extent of such part)
or all of such obligation whether by (i) the purchase of
securities or obligations, (ii) the purchase, sale or lease (as
lessee or lessor) of property or the purchase or sale of services
primarily for the purpose of enabling the obligor with respect to
such obligation to make any payment or performance (or payment of
damages or compensation in the event of nonperformance) of or on
account of any part or all of such obligation, or to assure the
owner of such obligation against loss, (iii) the supplying of
funds to or in any other manner investing in the obligor or any
other person with respect to or on account of such obligation,
(iv) repayment of amounts drawn by beneficiaries of letters of
credit or arising out of the import of goods or (v) the
indemnifying or holding harmless, in any way, of a person against
any part (to the extent of such part) or all of such person's
obligation under a Guaranty except for hold harmless agreements
with vendors with respect to product liability and warranties to
customers.
"Hazardous Materials" shall mean any hazardous
substances or wastes as such terms are defined in any applicable
Environmental Law, including (a) oil, petroleum and any
by-product thereof and (b) asbestos and asbestos-containing
material.
"Indebtedness" shall mean, with respect to any person
(a) all obligations of such person for borrowed money or with
respect to bankers' acceptances, deposits, or advances of any
kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or other similar instruments, (c) all
obligations of such person upon which interest charges are
customarily paid, except for debt obligations of any Subsidiary
of Borrower located in Brazil which are related to foreign
accounts receivable sold to certain banks, (d) all obligations of
such person for the deferred purchase price of property or
services (except (i) accounts payable to suppliers incurred in
the ordinary course of business and paid within one year,
(ii) non-interest-bearing notes payable to suppliers incurred in
the ordinary course of business and having a maturity date not
later than one year after the date of issuance thereof, and
(iii) payroll and other accruals arising in the ordinary course of
business), (e) all obligations of such person under conditional
sale or other title retention agreements relating to property
purchased by such person, (f) all Capitalized Lease Obligations,
including obligations arising from sale and leaseback
transactions which are required to be accounted for as
Capitalized Lease Obligations, (g) all Indebtedness of others
which is secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by)
a Lien on the property or assets of the person in question (the
amount of such Indebtedness taken into account for the purposes
of this clause (g) not to exceed the book value of such property
or assets), (h) all Guaranties of such person, and (i) all
obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements, or other
interest, exchange rate, or commodity hedging transactions (the
amount of such Indebtedness for purposes of this clause (i) to be
the termination value of such agreement or arrangement);
provided, however, that there shall be excluded from this
definition (x) Indebtedness between the Borrower and any domestic
Subsidiary and (y) Indebtedness between domestic Subsidiaries;
provided further, however, that any Indebtedness owed to a
domestic Subsidiary remaining outstanding after that Subsidiary
ceases to be a Subsidiary shall be included as Indebtedness
hereunder.
D5
"Intercreditor Agreement" shall mean an Intercreditor
Agreement, by and among the Administrative Agent on behalf of the
Banks and itself, The Prudential Insurance Company of America, on
behalf of Noteholders described therein, Borrower, and the
Guarantors, as the same may be amended, modified or supplemented
from time to time.
"Interest Payment Date" shall mean, with respect to any
Loan, the last day of the Interest Period applicable thereto and,
in the case of a LIBOR Loan with an Interest Period of more than
three months' duration or a Fixed Rate Loan with an Interest
Period of more than 90 days' duration, each day that would have
been an Interest Payment Date had successive Interest Periods of
three months' duration or 90 days' duration, as the case may be,
been applicable to such Loan, and, in addition, the date of any
continuation or conversion of the Interest Rate Type applicable
to such Loan with or to a Loan of a different Interest Rate Type.
"Interest Period" shall mean (a) as to any LIBOR
Borrowing, the period commencing on the date of such Borrowing or
on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be, and ending on
the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is
1, 2, 3 or 6 months thereafter, as the Borrower may elect, (b) as
to any ABR Borrowing, the period commencing on the date of such
Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Maturity
Date and (iii) the date such Borrowing is continued or converted
to a Borrowing of a different Interest Rate Type in accordance
with Section 2.06 or prepaid in accordance with Section 2.13 and
(c) as to any Fixed Rate Borrowing, the period commencing on the
date of such Borrowing and ending on the date specified in the
Competitive Bids in which the offer to make the Fixed Rate Loans
comprising such Borrowing were extended, which shall not be
earlier than 7 days after the date of such Borrowing or later
than 360 days after the date of such Borrowing; provided,
however, that if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of LIBOR Loans
only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on
the next preceding Business Day. Interest shall accrue from and
including the first day of an Interest Period to but excluding
the last day of such Interest Period.
"Interest Rate Type", when used in respect of any Loan
or Borrowing, shall refer to the Rate by reference to which
interest on such Loan or on the Loans comprising such Borrowing
is determined. For purposes hereof, "Rate" shall mean LIBOR, the
Alternate Base Rate or the Fixed Rate, as applicable.
"Law" shall mean any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance,
opinion, release, ruling, order, injunction, writ, decree, bond,
judgment, authorization or approval, lien or award of or
settlement agreement with any Governmental Authority.
"LIBOR" shall mean, with respect to any LIBOR Borrowing
for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16th of 1%) equal to the
rate at which deposits in the applicable currency approximately
equal in principal amount to (a) in the case of a Revolving
Credit Borrowing, the Administrative Agent's portion of such
LIBOR Borrowing and (b) in the case of a Competitive Borrowing, a
principal amount that would have been the Administrative Agent's
portion of such Competitive Borrowing had such Competitive
Borrowing been a Revolving Credit Borrowing, and for a maturity
comparable to such Interest Period are offered to the principal
London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing comprised of
LIBOR Loans.
D5
"LIBOR Competitive Loan" shall mean any Competitive
Loan bearing interest at a rate determined by reference to LIBOR
in accordance with the provisions of Article II.
"LIBOR Loan" shall mean any LIBOR Competitive Loan or
LIBOR Revolving Credit Loan.
"LIBOR Revolving Credit Loan" shall mean any Revolving
Credit Loan bearing interest at a rate determined by reference to
LIBOR in accordance with the provisions of Article II.
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind whatsoever
(including any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing or
agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction other than a financing
statement filed or given as a precautionary measure in respect of
a lease which is not required to be accounted for as a
Capitalized Lease Obligation and which does not otherwise secure
an obligation that constitutes Indebtedness).
"Loan" shall mean a Competitive Loan or a Revolving
Credit Loan, whether made as a LIBOR Loan, an ABR Loan or a Fixed
Rate Loan, as permitted hereby.
"Margin" shall mean, as to any LIBOR Competitive Loan,
the margin (expressed as a percentage rate per annum in the form
of a decimal to four decimal places) to be added to or subtracted
from LIBOR in order to determine the interest rate applicable to
such Loan, as specified in the Competitive Bid relating to such
Loan.
"Material Subsidiary" shall mean any Subsidiary
incorporated or otherwise organized in the United States (i) the
consolidated net income of which for the most recent fiscal year
of the Borrower for which audited financial statements have been
delivered pursuant to Section 5.05 were greater than or equal to
5% of Consolidated Net Income for such fiscal year, (ii) the
consolidated tangible assets of which as of the last day of the
Borrower's most recently ended fiscal year were greater than or
equal to 5% of the Borrower's consolidated tangible assets as of
such date or (iii) the net worth of which as of the last day of
the Borrower's most recently ended fiscal year was greater than
or equal to 5% of Consolidated Net Worth as of such date;
provided that, if at any time the aggregate amount of the
consolidated net income, consolidated tangible assets or
consolidated net worth of all Subsidiaries incorporated or
otherwise organized in the United States that are not Material
Subsidiaries exceeds 15% of consolidated net income for any such
fiscal year, 15% of the Borrower's consolidated tangible assets
as of the end of any such fiscal year or 15% of Consolidated Net
Worth for any such fiscal year, the Borrower (or, in the event
the Borrower has failed to do so within 10 days, the
Administrative Agent) shall designate as "Material Subsidiaries"
Subsidiaries incorporated or otherwise organized in the United
States sufficient to eliminate such excess, and such designated
Subsidiaries incorporated in the United States shall for all
purposes of this Agreement constitute Material Subsidiaries.
"Maturity Date" shall mean May 24, 2002 or such other
Maturity Date then in effect pursuant to Section 2.12(e).
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
and its successors.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or
any ERISA Affiliate of the Borrower is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
D5
"Multiple Employer Plan" shall mean a Plan which has
two or more contributing sponsors (including the Borrower or any
ERISA Affiliate) at least two of which are not under common
control, as such a Plan is described in Sections 4063 and 4064 of
ERISA.
"Notes" shall mean the Competitive Notes and the
Revolving Credit Notes.
"Obligations" shall mean the obligation of the Borrower
to make due and punctual payments of principal of and interest on
the Loans, the Facility Fee and all other monetary obligations of
the Borrower to the Administrative Agent or any Bank under this
Agreement, the Notes or the Fundamental Documents.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"person" or "Person" shall mean any natural person,
corporation, trust, association, company, partnership, limited
liability company, joint venture or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee plan (including a
Multiple Employer Plan but not a Multiemployer Plan) which is
subject to the provisions of Title IV of ERISA and which is
maintained for employees of the Borrower or any ERISA Affiliate
of the Borrower.
"Pro Forma Basis" shall mean, in connection with an
acquisition or disposition by or merger involving the Borrower or
any Subsidiary, a computation of compliance with the requirements
of this Agreement for the immediately preceding four full fiscal
quarters or other relevant period assuming that such acquisition,
disposition or merger had occurred at the beginning of such
period. Such computation shall take into account the relevant
financial information with respect to the acquired, disposed of,
or merged entity for such period and shall assume that any
Indebtedness incurred in connection with such acquisition,
disposition or merger had been incurred at the beginning of such
period; provided, however, in order to avoid double-counting, it
is acknowledged that if the Borrower or any Subsidiary incurs
Indebtedness in connection with such a transaction and repays
Indebtedness of the acquired, disposed of or merged entity, the
Indebtedness so repaid shall not be included as Indebtedness of
such entity for such period.
"Prohibited Transaction" shall mean any prohibited
transaction as described in Section 4975 of the Code or Section
406 of ERISA for which neither an individual nor a class
exemption has been issued by the U.S. Department of Labor.
"Proposed Acquisition" shall mean that acquisition
reflected in the confidential projected income statement,
statement of cash flow, and balance sheet, dated as of May 9,
2001, and entitled, "Acquisition Consolidated," which has been
made available to the Banks and the Administrative Agent,
provided that in making the Proposed Acquisition, Borrower and
its Subsidiaries shall not violate Regulations T, U, or X and, to
the extent that any credit provided hereunder shall be utilized
to purchase or carry margin stock (as such terms are defined in
Regulation U) in connection with the Proposed Acquisition,
Borrower shall provide to the Administrative Agent such forms as
are required by Regulation U and the value of such margin stock,
together with all other margin stock, held by Borrower (if it is
making the acquisition) or of any Subsidiary which is making the
acquisition shall not exceed 25% of the value of the assets (as
such values are determined in accordance with Regulation U) of
the person making the acquisition; and, for purposes of Section
6.11, the Proposed Acquisition shall be deemed to occur on the
date on which an amount in excess of $1,000,000 (or its Dollar
Equivalent) is expended or committed to be expended by any one or
more of Borrower or any of its Subsidiaries in consideration of
such acquisition.
D5
"Reduction Date" shall have the meaning given in
Section 2.12(c) hereof.
"Register" shall be as defined in Section 2.23(e).
"Regulation D" shall mean Regulation D of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation T" shall mean Regulation T of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as
defined in Section 4043(c) of ERISA or the regulations issued
thereunder.
"Required Banks" shall mean at any time Banks holding
(i) greater than 50% of the Commitments and (ii) greater than 50%
of the principal amount of Loans then outstanding; provided that
in order to terminate the Commitments or declare the Notes to be
forthwith due and payable pursuant to Article VII hereof,
"Required Banks" shall mean Banks holding greater than 50% of the
aggregate principal amount then outstanding of Credit Exposures.
"Reset Date" is defined at Section 1.03.
"Revolving Credit Borrowing" shall mean a Borrowing
consisting of simultaneous Revolving Credit Loans from each of
the Banks.
"Revolving Credit Borrowing Request" shall mean a
request made pursuant to Section 2.05 in the form of Exhibit A-5.
"Revolving Credit Exposure" shall mean, with respect to
any Bank at any time, the sum of (a) the outstanding Dollar
Equivalent principal amount of such Bank's Revolving Credit Loans
denominated in Dollars, and (b) the Dollar Equivalent of the
outstanding principal amount of such Bank's Revolving Credit
Loans denominated in Alternate Currencies.
"Revolving Credit Loans" shall mean the revolving loans
made by the Banks to the Borrower pursuant to Section 2.05. Each
Revolving Credit Loan shall be a LIBOR Revolving Credit Loan or
an ABR Loan.
"Revolving Credit Note" shall mean a promissory note of
the Borrower in the form of Exhibit B-2, executed and delivered
as provided in Section 2.08.
"Senior Officer" shall mean the Chairman, Vice
Chairman, President and Senior Vice Presidents of the Borrower.
"Standard & Poor's" and "S&P" shall mean Standard &
Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., and its successors.
D5
"Statutory Reserves" shall mean with respect to LIBOR,
a fraction (expressed as a decimal) the numerator of which is the
number one and the denominator of which is one minus the
aggregate of the maximum reserve requirements (including any
marginal, special, emergency or supplemental reserves)
established by the Board or any other banking authority to which
a Bank is subject for Eurocurrency Liabilities (as defined in
Regulation D). Such reserve percentages shall include those
imposed under Regulation D. LIBOR Loans shall be deemed to
constitute Eurocurrency Liabilities and as such shall be deemed
to be subject to such reserve requirements without benefit of or
credit for proration, exceptions or offsets which may be
available from time to time to any Bank under Regulation D.
Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
"subsidiary" shall mean, with respect to any person,
any corporation, association or other business entity of which
more than 50% of the securities or other ownership interests
having ordinary voting power is, at the time of which any
determination is being made, owned or controlled by such person
or one or more subsidiaries of such person.
"Subsidiary" shall mean a subsidiary of the Borrower.
"TARGET Day" shall mean any day on which the
Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) System (or, if such clearing system ceases to
be operative, such other clearing system (if any) determined by
the Administrative Agent to be a suitable replacement) is
operating.
"Total Commitment" shall mean the aggregate amount of
the Banks' Commitments, as in effect at such time.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA, or
liability to a Multiple Employer Plan pursuant to Section
4062(e), 4063, or 4064 of ERISA.
SECTION 1.02. Accounting Terms and Determinations.
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting
principles and practices consistent in all material respects
(except for changes with which the Borrower's independent
auditors concur and as to which Borrower shall notify the
Administrative Agent in writing prior to the effectiveness
thereof) with those applied in the preparation of the financial
statements referred to in Section 3.05(a) (and references herein
to generally accepted accounting principles shall mean generally
accepted accounting principles as so applied) and all financial
data submitted pursuant to this Agreement shall be prepared in
accordance with such principles and practices, except as
otherwise expressed herein. The definitions in this Article I
shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" as used
in this Agreement and any Exhibit or Schedule hereto shall be
deemed in each case to be followed by the phrase "without
limitation".
D5
SECTION 1.03. Exchange Rates. (a) Not later than
1:00 p.m., London time, on each Calculation Date, the
Administrative Agent shall (i) determine the Exchange Rate as of
such Calculation Date with respect to each Alternate Currency and
(ii) give notice thereof to the Banks and the Borrower. The
Exchange Rates so determined shall become effective on the first
Business Day immediately following the relevant Calculation Date
(a "Reset Date"), shall remain effective until the next
succeeding Reset Date, and shall for all purposes of this
Agreement (other than Section 10.12 or any other provision
expressly requiring the use of a current Exchange Rate) be the
Exchange Rates employed in converting any amounts between Dollars
and Alternate Currencies.
(b) Not later than 5:00 p.m., London time, on each
Reset Date and each date on which a Borrowing shall occur, the
Administrative Agent shall (i) determine the Dollar Equivalent of
the aggregate principal amount of the Loans then outstanding that
are denominated in Alternate Currencies (after giving effect to
any Loans made or repaid on such date) and (ii) notify the
Borrower of the aggregate Credit Exposures of the Banks.
ARTICLE II
LOANS
SECTION 2.01. Commitments. (a) Subject to the
terms and conditions hereof and relying upon the representations
and warranties herein set forth, each Bank agrees, severally and
not jointly, to make Revolving Credit Loans to the Borrower, in
Dollars or one or more Alternate Currencies, at any time and from
time to time on and after the Effective Date and until the
earlier of the Maturity Date or the termination of the Commitment
of such Bank, in an aggregate principal amount at any time
outstanding not to exceed such Bank's Commitment minus the amount
by which the Competitive Loans outstanding at such time shall be
deemed to have used such Commitment pursuant to Section 2.18,
subject, however, to the conditions that (a) at no time shall
(i) the sum of (A) the outstanding aggregate principal amount of
all Revolving Credit Exposures of all Banks, plus (B) the
outstanding aggregate principal amount of all Competitive Loans
made by all Banks exceed (ii) the Total Commitment and (b) at all
times (except as expressly contemplated by the last sentence of
Section 2.12(d)) the Revolving Credit Exposure of each Bank shall
equal the product of (i) such Bank's Applicable Commitment
Percentage and (ii) the outstanding aggregate Revolving Credit
Exposures.
(b) Within the foregoing limits, the Borrower may
borrow, pay or repay and reborrow hereunder, on and after the
Effective Date and prior to the Maturity Date, upon the terms and
subject to the conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Revolving Credit Loan
shall be made as part of a Borrowing consisting of Loans made by
the Banks ratably in accordance with their Commitments; provided,
however, that the failure of any Bank to make any Revolving
Credit Loan shall not in itself relieve any other Bank of its
obligation to lend hereunder (it being understood, however, that
no Bank shall be responsible for the failure of any other Bank to
make any Loan required to be made by such other Bank). Each
Competitive Loan shall be made in Dollars in accordance with the
procedures set forth in Section 2.04. The Competitive Loans
comprising any Borrowing shall be denominated in Dollars in an
aggregate amount that is at least $5,000,000 and in an integral
multiple of $1,000,000. The Revolving Credit Loans comprising
any Borrowing shall be in a minimum amount of $5,000,000 (or the
Dollar Equivalent thereof) and, in the case of Loans denominated
in Dollars, an integral multiple of $1,000,000, or an aggregate
principal amount equal to (or the Dollar Equivalent of which is
equal to) the remaining balance of the available Commitments.
D5
(b) Each Competitive Borrowing shall be comprised
entirely of LIBOR Competitive Loans or Fixed Rate Loans, and each
Revolving Credit Borrowing shall be comprised entirely of LIBOR
Revolving Credit Loans, or, in the case of a Borrowing
denominated in Dollars, ABR Loans, as the Borrower may request
pursuant to Section 2.04 or 2.05, as applicable. Each Bank may
at its option make any LIBOR Loan by causing any domestic or
foreign branch or Affiliate of such Bank to make such Loan;
provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement and the applicable Note. Borrowings
of more than one Interest Rate Type may be outstanding at the
same time; provided, however, that the Borrower shall not be
entitled to request any Borrowing that, if made, would result in
an aggregate of more than 15 separate Revolving Credit Loans of
any one Bank being outstanding hereunder at any one time. For
purposes of the calculation required by the immediately preceding
sentence, LIBOR Revolving Credit Loans having different Interest
Periods, regardless of whether they commence on the same date,
shall be considered separate Loans and all Loans of a single
Interest Rate Type made on a single date shall be considered a
single Loan if such Loans have a common Interest Period.
(c) Each Bank shall make each Loan (other than Loans
denominated in Alternate Currencies) to be made by it hereunder
on the proposed date thereof by wire transfer of immediately
available funds to the Administrative Agent in Chicago, Illinois,
not later than 12:00 noon, New York City time, and the
Administrative Agent shall by 3:00 p.m., New York City time,
credit the amounts so received to the general deposit account of
the Borrower as directed in writing from time to time by
Borrower, or, if a Borrowing shall not occur on such date because
any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Banks as soon as
practicable. Competitive Loans shall be made by the Bank or
Banks whose Competitive Bids therefor are accepted pursuant to
Section 2.04 in the amounts so accepted and Revolving Credit
Loans shall be made by the Banks pro rata in accordance with
Section 2.18. Each Bank shall make each Loan denominated in an
Alternate Currency to be made by it hereunder on the proposed
date thereof by wire transfer of such immediately available funds
as may then be customary for the settlement of international
transactions in the applicable Alternate Currency, by 12:00 noon,
New York City time, to an account designated by the
Administrative Agent. The Administrative Agent will make such
Loans available to the Borrower by promptly crediting the amounts
so received, in like funds, to an account of the Borrower as
specified in the applicable Revolving Credit Borrowing Request or
Competitive Bid Request. Unless the Administrative Agent shall
have received notice from a Bank prior to the date of any
Borrowing, the Administrative Agent may assume that such Bank has
made such portion available to the Administrative Agent on the
date of such Borrowing in accordance with this paragraph (c) and
the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding
amount. If and to the extent that such Bank shall not have made
such portion available to the Administrative Agent, such Bank and
the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to
the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such
Borrowing and (ii) in the case of such Bank, the Federal Funds
Effective Rate, or, in the case of any amount denominated in an
Alternate Currency, such other rate as shall be specified by the
Administrative Agent as representing its cost of overnight or
short-term funds in such currency. If such Bank shall repay to
the Administrative Agent such corresponding amount, such amount
shall constitute such Bank's Loan as part of such Borrowing for
purposes of this Agreement.
(d) Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request any
Borrowing if the Interest Period requested with respect thereto
would end after the Maturity Date and all Revolving Credit Loans
shall be due and payable on the Maturity Date.
D5
SECTION 2.03. Use of Proceeds. The proceeds of the
Loans shall be used to refinance outstanding Indebtedness of the
Borrower under that 364-Day Competitive Advance, Revolving Credit
and Guaranty Agreement dated as of October 23, 1997, as amended,
modified, and supplemented through the date hereof, among the
Borrower, the guarantors and banks, party thereto, and The Chase
Manhattan Bank, as Agent, and ABN AMRO Bank N.V., as
Documentation Agent, and for general working capital and
corporate purposes, including acquisitions in the industry of
Borrower or any of its Material Subsidiaries.
SECTION 2.04. Competitive Bid Procedure. (a) In
order to request Competitive Bids, the Borrower shall hand
deliver or telecopy (or deliver by comparable means) to the
Administrative Agent a duly completed Competitive Bid Request in
the form of Exhibit A-1, to be received by the Administrative
Agent (i) in the case of a LIBOR Competitive Borrowing, not later
than 11:00 a.m., New York City time, four Business Days before a
proposed Competitive Borrowing and (ii) in the case of a Fixed
Rate Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before a proposed Competitive Borrowing. No ABR
Loan shall be requested in, or made pursuant to, a Competitive
Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit A-1 may be rejected in the
Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the Borrower of such rejection by
telecopier or in a comparable manner. Such request shall in each
case refer to this Agreement and specify (i) whether the
Borrowing then being requested is to be a LIBOR Borrowing or a
Fixed Rate Borrowing, (ii) the date of such Borrowing (which
shall be a Business Day) and the aggregate principal amount
thereof, which shall be in an aggregate amount that is at least
$5,000,000 and in an integral multiple of $1,000,000, and
(iii) the Interest Period with respect thereto (which may not end
after the Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier in the form set
forth in Exhibit A-2, or in a comparable manner, the Banks to
bid, on the terms and subject to the conditions of this
Agreement, to make Competitive Loans pursuant to the Competitive
Bid Request.
(b) Each Bank may, in its sole discretion, make one or
more Competitive Bids to the Borrower responsive to a Competitive
Bid Request. Each Competitive Bid by a Bank must be received by
the Administrative Agent via telecopier (or in a comparable
manner), in the form of Exhibit A-3, (i) in the case of a LIBOR
Competitive Borrowing, not later than 10:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing
and (ii) in the case of a Fixed Rate Borrowing, not later than
10:30 a.m., New York City time, on the day of a proposed
Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform
substantially to the format of Exhibit A-3 may be rejected by the
Administrative Agent after conferring with, and upon the
instruction of, the Borrower, and the Administrative Agent shall
notify the Bank making such nonconforming bid of such rejection
as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (i) the principal amount (which shall be in
a minimum principal amount of $5,000,000 and in an integral
multiple of $1,000,000 and which may equal the entire principal
amount of the Competitive Borrowing requested by the Borrower) of
the Competitive Loan or Loans that the Bank is willing to make to
the Borrower, (ii) the Competitive Bid Rate or Rates at which the
Bank is prepared to make the Competitive Loan or Loans and
(iii) the Interest Period and the last day thereof. If any Bank
shall elect not to make a Competitive Bid, such Bank shall so
notify the Administrative Agent via telecopier or in a comparable
manner (i) in the case of LIBOR Competitive Loans, not later than
10:30 a.m., New York City time, three Business Days before a
proposed Competitive Borrowing and (ii) in the case of Fixed Rate
Loans, not later than 10:30 a.m., New York City time, on the day
of a proposed Competitive Borrowing; provided, however, that
failure by any Bank to give such notice shall not cause such Bank
to be obligated to make any Competitive Loan as part of such
Competitive Borrowing. A Competitive Bid submitted by a Bank
pursuant to this paragraph (b) shall be irrevocable.
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(c) The Administrative Agent shall promptly notify the
Borrower by telecopier, or in a comparable manner, of all the
Competitive Bids made, the Competitive Bid Rate and the principal
amount of each Competitive Loan in respect of which a Competitive
Bid was made and the identity of the Bank that made each bid.
The Administrative Agent shall send a copy of all Competitive
Bids to the Borrower for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.04.
(d) The Borrower may in its sole and absolute
discretion, subject only to the provisions of this paragraph (d),
accept or reject any Competitive Bid referred to in paragraph (b)
above. The Borrower shall notify the Administrative Agent by
telephone, confirmed by telecopier, or in a comparable manner, in
the form of a Competitive Bid Accept/Reject Letter in the form of
Exhibit A-4, whether and to what extent it has decided to accept
or reject any of or all the bids referred to in paragraph (b)
above, (i) in the case of a LIBOR Competitive Borrowing, not
later than 11:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 11:30 a.m., New York City
time, on the day of a proposed Competitive Borrowing; provided,
however, that (A) the failure by the Borrower to give such notice
shall be deemed to be a rejection of all the bids referred to in
paragraph (b) above, (B) the Borrower shall not accept a bid made
at a particular Competitive Bid Rate if the Borrower has decided
to reject a bid made at a lower Competitive Bid Rate, (C) the
aggregate amount of the Competitive Bids accepted by the Borrower
shall not exceed the principal amount specified in the
Competitive Bid Request, (D) if the Borrower shall accept a bid
or bids made at a particular Competitive Bid Rate but the amount
of such bid or bids shall cause the total amount of bids to be
accepted by the Borrower to exceed the amount specified in the
Competitive Bid Request, then the Borrower shall accept a portion
of such bid or bids in an amount equal to the amount specified in
the Competitive Bid Request less the amount of all other
Competitive Bids accepted at lower Competitive Bid Rates with
respect to such Competitive Bid Request (it being understood that
acceptance, in the case of multiple bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of
each such bid at such Competitive Bid Rate) and (E) except
pursuant to clause (D) above, no bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in an aggregate
amount that is at least $5,000,000 and an integral multiple of
$1,000,000; provided further, however, that if a Competitive Loan
must be in an amount less than $5,000,000 because of the
provisions of clause (D) above, such Competitive Loan may be in
an aggregate amount that is at least $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (D) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner that
shall be in the discretion of the Borrower. A notice given by
the Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify
each bidding Bank whether its Competitive Bid has been accepted
(and if so, in what amount and at what Competitive Bid Rate) by
telecopy, or in a comparable manner, sent by the Administrative
Agent, and each successful bidder will thereupon become bound,
subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within
four Business Days after the date of any previous Competitive Bid
Request.
(g) If the Administrative Agent shall elect to submit
a Competitive Bid in its capacity as a Bank, it shall submit such
bid directly to the Borrower one quarter of an hour earlier than
the latest time at which the other Banks are required to submit
their bids to the Administrative Agent pursuant to paragraph (b)
above.
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(h) All notices required by this Section 2.04 shall be
given in accordance with Section 10.01.
(i) Notwithstanding any other provisions of this
Agreement, the Borrower shall not be entitled to request any
Competitive Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date and each
Competitive Borrowing shall be due and payable on the last day of
the Interest Period applicable thereto.
SECTION 2.05. Revolving Credit Borrowing Procedure.
In order to effect a Revolving Credit Borrowing or the
continuation or conversion of an Interest Rate Type applicable
thereto, the Borrower shall hand deliver or telecopy (or deliver
by comparable means) to the Administrative Agent a Borrowing
notice in the form of Exhibit A-5 (a) in the case of a LIBOR
Revolving Credit Borrowing or the continuation or conversion of
an Interest Rate Type applicable thereto, not later than 12:00
noon, New York City time, three Business Days before a proposed
Borrowing or before the last day of the Interest Period
applicable to a Revolving Credit Borrowing for which the Interest
Rate Type is to be continued or converted, and (b) in the case of
an ABR Borrowing, not later than 10:00 a.m., New York City time,
on the day of a proposed Borrowing. No Fixed Rate Loan or LIBOR
Competitive Loan shall be requested or made pursuant to a
Revolving Credit Borrowing Request. Such notice shall be
irrevocable and shall in each case specify (a) whether the
Borrowing then being requested is to be, or the Borrowing with
respect to which the Interest Rate Type is being continued or
converted is, a LIBOR Revolving Credit Borrowing or an ABR
Borrowing, (b) whether such Borrowing is to be in Dollars or an
Alternate Currency (and if in an Alternate Currency, such
Alternate Currency), (c) the date of such Revolving Credit
Borrowing or continuation or conversion (which shall be a
Business Day) and the amount thereof in Dollars (notwithstanding
that the request may be for a Borrowing in an Alternate Currency)
and (d) if such Borrowing is to be a LIBOR Revolving Credit
Borrowing or if the Borrowing with respect to which the Interest
Rate Type being continued or converted is a LIBOR Revolving
Credit Borrowing, the Interest Period with respect thereto (which
may not end after the Maturity Date). If no election as to the
Interest Rate Type of Revolving Credit Borrowing is specified in
any such notice, then the requested Revolving Credit Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to
any LIBOR Revolving Credit Borrowing is specified in any such
notice, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. If the Borrower shall
not have given notice in accordance with this Section 2.05 of its
election to continue or convert the Interest Rate Type for a
Revolving Credit Borrowing prior to the end of the Interest
Period in effect for such Borrowing, then (a) in the case of a
Borrowing in Dollars, the Borrower shall (unless such Borrowing
is repaid at the end of such Interest Period) be deemed to have
given notice of an election to continue or convert, as the case
may be, such Borrowing as an ABR Borrowing and (b) in the case of
a Borrowing in an Alternate Currency, such Borrowing shall be due
and payable at the end of such Interest Period. The
Administrative Agent shall promptly advise the Banks of any
notice given pursuant to this Section 2.05 and of each Bank's
portion of the requested Borrowing.
SECTION 2.06. [RESERVED].
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SECTION 2.07. Fees. (a) The Borrower agrees to pay to
each Bank, through the Administrative Agent, on each March 31,
June 30, September 30 and December 31 and on the Maturity Date or
any earlier date on which the Commitment of such Bank shall have
been terminated and the outstanding Loans of such Bank have been
repaid in full, a facility fee (a "Facility Fee") on the
Commitment of such Bank, whether used or unused, and, after the
Commitment of such Bank shall have been terminated, on the
outstanding principal amount of such Bank's Revolving Credit
Exposure, during the quarter ending on the date such payment is
due (or shorter period commencing with the date of this Agreement
or ending with the Maturity Date or any earlier date on which the
Commitments shall have been terminated and the outstanding Loans
of such Bank repaid in full), at a rate per annum equal to the
Applicable Percentage from time to time in effect. All Facility
Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Facility Fee due to each Bank
shall commence to accrue on the Closing Date and shall cease to
accrue on the Maturity Date or any earlier date on which the
Commitment of such Bank shall have been terminated and the
outstanding Loans of such Bank repaid in full.
(b) The Borrower agrees to pay to each Bank, through
the Administrative Agent, on each March 31, June 30, September
30, December 31, and on the Maturity Date or any earlier date on
which the Commitment of such Bank shall have terminated and the
outstanding Loans of such Bank have been repaid in full, a usage
fee (a "Usage Fee") at a rate per annum equal to the Applicable
Percentage from time to time in effect on the aggregate amount of
such Bank's Credit Exposure for each day on which the aggregate
Credit Exposure of all Banks shall be greater than fifty percent
(50%) of the total Commitments. All Usage Fees shall be computed
on the basis of the actual number of days elapsed in a year of
360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay the Administrative
Agent, for its own account, the fees provided for in the Fee
Letter.
(d) All fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for
distribution, if and as appropriate, among the Banks. Once paid,
none of the fees shall be refundable under any circumstances.
SECTION 2.08. Notes; Repayment of Loans. The
Competitive Loans made by each Bank shall be evidenced by a
single Competitive Note duly executed on behalf of the Borrower,
dated the Closing Date, in substantially the form attached hereto
as Exhibit B-1 with the blanks appropriately filled, payable to
the order of such Bank in a principal amount equal to the Total
Commitment. The Revolving Credit Loans made by each Bank shall
be evidenced by a single Revolving Credit Note duly executed on
behalf of the Borrower, dated the Closing Date, in substantially
the form attached hereto as Exhibit B-2 with the blanks
appropriately filled, payable to the order of such Bank in a
principal amount equal to the Commitment of such Bank. The
outstanding principal balance of each Competitive Loan or
Revolving Credit Loan, as evidenced by the relevant Note, shall
be payable (a) in the case of a Competitive Loan, on the last day
of the Interest Period applicable to such Competitive Loan and on
the Maturity Date and (b) in the case of a Revolving Credit Loan,
on the Maturity Date in the currency of such Loan. Each
Competitive Note and each Revolving Credit Note shall bear
interest from the date thereof on the outstanding principal
balance thereof as set forth in Section 2.09. Each Bank shall,
and is hereby authorized by the Borrower to, endorse on the
schedule to the relevant Note held by such Bank (or on a
continuation of such schedule attached to each such Note and made
a part thereof), or otherwise to record in such Bank's internal
records, an appropriate notation evidencing the date, currency
D5
and amount of each Competitive Loan or Revolving Credit Loan, as
applicable, of such Bank, each payment or prepayment of principal
of any Competitive Loan or Revolving Credit Loan, as applicable,
and the other information provided on such schedule; provided,
however, that the failure of any Bank to make such a notation or
any error therein shall not in any manner affect the obligation
of the Borrower to repay the Competitive Loans or Revolving
Credit Loans, as applicable, made by such Bank in accordance with
the terms of the relevant Note.
SECTION 2.09. Interest on Loans. (a) Subject to the
provisions of Sections 2.10 and 2.11, the Loans comprising each
LIBOR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days, provided
that, for Loans comprising LIBOR Borrowings denominated in an
Alternate Currency for which a 365-day basis is the only market
practice available, interest shall be calculated on the basis of
a year of 365 or 366 days, as the case may be) at a rate per
annum equal to (i) in the case of each LIBOR Revolving Credit
Loan, LIBOR for the Interest Period in effect for such Borrowing
plus the Applicable Percentage and (ii) in the case of each LIBOR
Competitive Loan, LIBOR for the Interest Period in effect for
such Borrowing plus the Margin offered by the Bank making such
Loan and accepted by the Borrower pursuant to Section 2.04.
(b) Subject to the provisions of Section 2.10, the
Loans comprising each ABR Borrowing shall bear interest (computed
on the basis of the actual number of days elapsed over a year of
365 or 366 days, as the case may be, when determined by reference
to the Prime Rate and over a year of 360 days at all other times)
at a rate per annum equal to the Alternate Base Rate.
(c) Subject to the provisions of Section 2.10, each
Fixed Rate Loan shall bear interest at a rate per annum (computed
on the basis of the actual number of days elapsed over a year of
360 days) equal to the fixed rate of interest offered by the Bank
making such Loan and accepted by the Borrower pursuant to
Section 2.04.
(d) Interest on each Loan shall be payable on each
Interest Payment Date applicable to such Loan in the currency of
such Loan. The LIBOR or the Alternate Base Rate for each
Interest Period or day within an Interest Period shall be
determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
(e) The Applicable Percentage shall be determined
based upon the Debt Rating.
(f) Borrower may call Administrative Agent on or
before the date on which a Revolving Credit Borrowing Request is
to be delivered to receive an indication of the interest rates
and applicable Alternate Currency exchange rates then in effect,
but it is acknowledged that such indication shall not be binding
on Administrative Agent or the Banks nor affect the rate of
interest or the calculation of exchange rates which thereafter
are actually in effect when the request is made.
SECTION 2.10. Interest on Overdue Amounts. If the
Borrower shall default in the payment of the principal of or
interest on any Loan or any other amount becoming due hereunder,
the Borrower shall on demand from time to time pay interest, to
the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as
before judgment) at a rate per annum computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as
applicable, in the case of amounts bearing interest determined by
reference to the Prime Rate (and a year of 360 days in all other
cases) equal to (a) in the case of any Loan, the rate applicable
to such Loan under Section 2.09 plus 2% per annum and (b) in the
case of any other amount, the rate that would at the time be
applicable to an ABR Loan under Section 2.09 plus 2% per annum.
D5
SECTION 2.11. Alternate Rate of Interest. In the
event, and on each occasion, that prior to the commencement of
any Interest Period for a LIBOR Borrowing, the Administrative
Agent shall have determined that deposits in the applicable
currency in the amount of the requested principal amount of such
LIBOR Borrowing are not generally available in the London
interbank market, or that the rate at which such deposits are
being offered will not adequately and fairly reflect the cost to
any Bank of making or maintaining such LIBOR Loans during such
Interest Period, or that reasonable means do not exist for
ascertaining the LIBOR Rate, the Administrative Agent shall, as
soon as practicable thereafter, give written or telecopier or
comparable notice of such determination to the Borrower and the
Banks. In the event of any such determination, until the
Administrative Agent shall have determined that circumstances
giving rise to such notice no longer exist, (a) any request by
the Borrower for a LIBOR Competitive Borrowing pursuant to
Section 2.04, and any request for a LIBOR Revolving Credit
Borrowing in an Alternate Currency, shall be of no force and
effect and shall be denied by the Administrative Agent and
(b) any request by the Borrower for a LIBOR Revolving Credit
Borrowing in Dollars pursuant to Section 2.05 shall be deemed to
be a request for an ABR Loan. Each determination by the
Administrative Agent hereunder shall be conclusive absent
manifest error; provided, however, that if a determination is
made that dollar deposits in the amount of the requested
principal amount of such LIBOR Borrowing are not generally
available in the London interbank market, or that the rate at
which such dollar deposits are being offered will not adequately
and fairly reflect the cost to any Bank of making or maintaining
such LIBOR Loans during such Interest Period, or that reasonable
means do not exist for ascertaining the LIBOR Rate, the
Administrative Agent shall promptly notify the Borrower of such
determination in writing and the Borrower may, by notice to the
Administrative Agent given within 24 hours of receipt of such
notice, withdraw the request for the LIBOR Competitive Borrowing
or the LIBOR Revolving Credit Borrowing, as applicable.
SECTION 2.12. Termination, Reduction, Increase and
Extension of Commitments. (a) The Commitments shall be
automatically terminated on the earlier of (i) the Maturity Date
or (ii) 30 days after the date hereof if the Closing Date has not
occurred.
(b) Subject to Section 2.13(b), upon at least three
Business Days' prior irrevocable written or telecopy notice to
the Administrative Agent, the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently
reduce, the Total Commitment; provided, however, that (i) each
partial reduction of the Total Commitment shall be in an integral
multiple of $1,000,000 and in a minimum principal amount of
$10,000,000 and (ii) the Borrower shall not be entitled to make
any such termination or reduction that would reduce the Total
Commitment to an amount less than the aggregate outstanding
principal amount of the Competitive Loans.
(c) Each reduction in the Total Commitment hereunder
shall be made ratably among the Banks in accordance with their
respective Commitments. The Borrower shall pay to the
Administrative Agent for the account of the Banks on the date of
each termination or reduction (in the case of a reduction, the
"Reduction Date"), the Facility Fees on the amount of the
Commitments so terminated or reduced accrued to the date of such
termination or reduction.
D5
(d) The Borrower may from time to time, and
notwithstanding any prior reductions in the Total Commitment by
the Borrower, by notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Banks), request that the
Total Commitment be increased by an amount that is not less than
$25,000,000 and will not result in the Total Commitment under
this Agreement and the Facility B Credit Agreement exceeding
$575,000,000 in the aggregate. Each such notice shall set forth
the requested amount of the increase in the Total Commitment and
the date on which such increase is to become effective (which
shall be not fewer than 20 days after the date of such notice),
and shall offer each Bank the opportunity to increase its
Commitment by its ratable share, based on the amounts of the
Banks' Commitments, of the requested increase in the Total
Commitment. Each Bank shall, by notice to the Borrower and the
Administrative Agent given not more than 15 Business Days after
the date of the Borrower's notice, either agree to increase its
Commitment by all or a portion of the offered amount or decline
to increase its Commitment (and any Bank that does not deliver
such a notice within such period of 15 Business Days shall be
deemed to have declined to increase its Commitment); provided,
however, that no Bank may agree to increase its Commitment
hereunder unless it shall have agreed to ratably increase its
Commitment under the Facility B Credit Agreement (if the
Facility B Credit Agreement is then in effect). In the event
that, on the 15th Business Day after the Borrower shall have
delivered a notice pursuant to the first sentence of this
paragraph, the Banks shall have agreed pursuant to the preceding
sentence to increase their Commitments by an aggregate amount
less than the increase in the Total Commitment requested by the
Borrower, the Borrower shall have the right to arrange for one or
more banks or other financial institutions (any such bank or
other financial institution being called an "Augmenting Bank"),
which may include any Bank, to extend Commitments or increase
their existing Commitments in an aggregate amount equal to all or
part of the unsubscribed amount; provided that each Augmenting
Bank, if not already a Bank hereunder, shall be subject to the
approval of the Borrower and the Administrative Agent (which
approval shall not be unreasonably withheld) and shall execute
all such documentation as the Administrative Agent shall specify
to evidence its status as a Bank hereunder. If (and only if)
Banks (including Augmenting Banks) shall have agreed to increase
their Commitments or to extend new Commitments in an aggregate
amount not less than $25,000,000, such increases and such new
Commitments shall become effective on the date specified in the
notice delivered by the Borrower pursuant to the first sentence
of this paragraph, and shall be deemed added to the Commitments
set forth in Schedule 2.01 hereof. Notwithstanding the
foregoing, no increase in the Total Commitment (or in the
Commitment of any Bank) shall become effective under this
paragraph unless, on the date of such increase, (i) the
conditions set forth in paragraphs (b) and (c) of Section 4.01
shall be satisfied (with all references in such paragraphs to a
Borrowing being deemed to be references to such increase) and the
Administrative Agent shall have received a certificate to that
effect dated such date and executed by a Financial Officer of the
Borrower and (ii) on the effective date of such increase the
Total Commitment under and as defined in the Facility B Credit
Agreement shall be proportionately increased (if the Facility B
Credit Agreement is then in effect) in accordance with the terms
of such Agreement. Following any increase in the Commitment of
any of the Banks pursuant to this paragraph, any Revolving Credit
Loans outstanding prior to the effectiveness of such increase
shall continue outstanding until the ends of the respective
interest periods applicable thereto, and shall then be repaid or
refinanced with new Revolving Credit Loans made pursuant to
Sections 2.01 and 2.05.
D5
(e) (i) The Borrower may, by notice to the
Administrative Agent (which shall promptly deliver a copy to each
of the Banks) not less than 30 days and not more than 45 days
prior to the Maturity Date (the "Anniversary Date"), request that
the Banks extend the Maturity Date for an additional 364 days
from the Maturity Date then in effect hereunder (the "Existing
Maturity Date"). Each Bank shall, by notice to the Borrower and
the Administrative Agent given not more than 15 Business Days
after the date of the Borrower's notice, but in no event more
than 30 days prior to the Maturity Date, advise the Borrower
whether or not such Bank agrees to such extension (and any Bank
that does not advise the Borrower on or before the 15th Business
Day after the date of the Borrower's notice shall be deemed to
have advised the Borrower that it will not agree to such
extension).
(ii) The Borrower shall have the right on or before the
Anniversary Date to require any Bank which shall have advised or
been deemed to advise the Borrower that it will not agree to an
extension of the Maturity Date (each a "Non-Extending Bank") to
transfer without recourse (in accordance with and subject to the
restrictions contained in Section 2.23, except that the $4,000
processing fee set forth in Section 2.23(b)(iii) shall be paid by
the Borrower) all its interests, rights and obligations under
this Agreement to one or more other banks or other financial
institutions (any such bank or other financial institution being
called a "Substitute Bank"), which may include any Bank; provided
that (a) such Substitute Bank, if not already a Bank hereunder,
shall be subject to the approval of the Borrower and the
Administrative Agent (which approval shall not be unreasonably
withheld) and shall execute all such documentation as the
Administrative Agent shall specify to evidence its status as a
Bank hereunder, (b) such assignment shall become effective as of
the Anniversary Date and (c) the Borrower shall pay to such
Non-Extending Bank in immediately available funds on the
effective date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by it hereunder
and all other amounts accrued for its account or owed to it
hereunder.
Notwithstanding the foregoing, no extension of the
Maturity Date shall be effective with respect to any Bank unless,
on and as of the Anniversary Date, the conditions set forth in
paragraphs (b) and (c) of Section 4.01 shall be satisfied (with
all references in such paragraphs to a Borrowing being deemed to
be references to such extension) and the Administrative Agent
shall have received a certificate to that effect, dated the
Anniversary Date, and executed by a Financial Officer of the
Borrower.
SECTION 2.13. Prepayment of Loans. (a) Prior to the
Maturity Date the Borrower shall have the right at any time to
prepay any Revolving Credit Borrowing, or, with the consent of
the particular Bank or Banks to receive the prepayment, any
Competitive Borrowing (which consent may be withheld in such
Bank's or Banks' sole discretion), in whole or in part, subject
to the requirements of Section 2.17 and 2.18 but otherwise
without premium or penalty, upon prior written or telecopy notice
to the Administrative Agent before 12:00 noon, New York City
time, at least one Business Day prior to such prepayment in the
case of an ABR Loan and at least three Business Days prior to
such prepayment in the case of a LIBOR Loan or Fixed Rate Loan;
provided, however, that each such partial prepayment shall be in
a minimum aggregate principal amount of $5,000,000 (or the Dollar
Equivalent thereof) and, in the case of a Borrowing denominated
in Dollars, an integral multiple of $1,000,000. In all instances
under this Agreement, each payment and prepayment of any Loan
shall be made in the currency in which such Loan was made.
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(b) On the date of any termination or reduction of the
Total Commitment pursuant to Section 2.12, the Borrower shall pay
or prepay so much of the Revolving Credit Loans as shall be
necessary in order that the aggregate Credit Exposures will not
exceed the Total Commitment following such termination or
reduction. Subject to the foregoing, any such payment or
prepayment shall be applied to such Borrowing or Borrowings as
the Borrower shall select. All prepayments under this
Section 2.13(b) shall be subject to Sections 2.17 and 2.18.
(c) On the earlier of any Reset Date or the last day
of any Interest Period when the aggregate Credit Exposures (after
giving effect to any Borrowings effected on such date) exceed the
Total Commitment, the Borrower shall make a mandatory prepayment
of the Revolving Credit Loans in such amount as may be necessary
to eliminate such excess. Any prepayments required by this
paragraph shall be applied to outstanding ABR Loans up to the
full amount thereof before they are applied to outstanding LIBOR
Revolving Credit Loans.
(d) Each notice of prepayment shall specify the
specific Borrowing, the prepayment date and the aggregate
principal amount of each Borrowing to be prepaid and the currency
thereof, shall be irrevocable and shall commit the Borrower to
prepay such Borrowing by the amount stated therein. All
prepayments under this Section 2.13 shall be accompanied by
accrued interest on the principal amount being prepaid to the
date of prepayment.
SECTION 2.14. Eurodollar Reserve Costs. The Borrower
shall pay to the Administrative Agent for the account of each
Bank, so long as such Bank shall be required under regulations of
the Board to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (as
defined in Regulation D), additional interest on the unpaid
principal amount of each LIBOR Loan made to the Borrower by such
Bank, from the date of such Loan until such Loan is paid in full,
at an interest rate per annum equal at all times during the
Interest Period for such Loan to the remainder obtained by
subtracting (i) LIBOR for such Interest Period from (ii) the rate
obtained by multiplying LIBOR as referred to in clause (i) above
by the Statutory Reserves of such Bank for such Interest Period.
Such additional interest shall be determined by such Bank and
notified to the Borrower (with a copy to the Administrative
Agent) not later than five Business Days before the next Interest
Payment Date for such Loan, and such additional interest so
notified to the Borrower by any Bank shall be payable to the
Administrative Agent for the account of such Bank on each
Interest Payment Date for such Loan.
SECTION 2.15. Reserve Requirements; Change in
Circumstances. (a) Notwithstanding any other provision herein,
if any Change in Law (i) shall subject any Bank to, or increase
the net amount of, any tax, levy, impost, duty, charge, fee,
deduction or withholding with respect to any LIBOR Loan or Fixed
Rate Loan, or shall change the basis of taxation of payments to
any Bank of the principal of or interest on any LIBOR Loan or
Fixed Rate Loan made by such Bank or any other fees or amounts
payable hereunder (other than (x) taxes imposed on the overall
net income of such Bank by the jurisdiction in which such Bank
has its principal office or by any political subdivision or
taxing authority therein (or any tax which is enacted or adopted
by such jurisdiction, political subdivision or taxing authority
as a direct substitute for any such taxes) or (y) any tax,
assessment, or other governmental charge that would not have been
imposed but for the failure of any Bank to comply with any
certification, information, documentation or other reporting
requirement), (ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (other than
requirements as to which the Borrower is obligated to make
payments pursuant to Section 2.14) against assets of, deposits
with or for the account of, or credit extended by, such Bank, or
(iii) shall impose on such Bank
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or the London interbank market any other condition affecting this
Agreement or any LIBOR Loan or Fixed Rate Loan made by such Bank,
and the result of any of the foregoing shall be to increase the
cost to such Bank of making or maintaining any LIBOR Loan or
Fixed Rate Loan or to reduce the amount of any sum received or
receivable by such Bank hereunder (whether of principal, interest
or otherwise) in respect thereof by an amount deemed in good
faith by such Bank to be material, then the Borrower shall pay
such additional amount or amounts as will compensate such Bank
for such increase or reduction to such Bank upon demand by such
Bank.
(b) If, after the date of this Agreement, any Bank
shall have determined in good faith that any Change in Law
regarding capital requirements has or would have the effect of
reducing the rate of return on such Bank's capital or on the
capital of the Bank's holding company (or any lending office of
such Bank), if any, as a consequence of its obligations hereunder
to a level below that which such Bank (or holding company or
office) could have achieved but for such Change in Law (taking
into consideration such Bank's policies or the policies of its
holding company, as the case may be, with respect to capital
adequacy) by an amount deemed by such Bank to be material, then,
from time to time, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or
holding company or office) for such reduction upon demand by such
Bank.
(c) A certificate of a Bank setting forth in
reasonable detail (i) such amount or amounts as shall be
necessary to compensate such Bank (or participating banks or
other entities pursuant to Section 2.23) as specified in
paragraph (a) or (b) above, as the case may be, and (ii) the
calculation of such amount or amounts under clause (c)(i), shall
be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Bank the amount
shown as due on any such certificate within 30 days after its
receipt of the same.
(d) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with
respect to any Interest Period shall not constitute a waiver of
such Bank's rights to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in
return on capital with respect to such Interest Period or any
other Interest Period. The protection of this Section 2.15 shall
be available to each Bank regardless of any possible contention
of invalidity or inapplicability of the law, regulation or
condition which shall have been imposed.
SECTION 2.16. Change in Legality. (a) Notwithstanding
anything to the contrary herein contained, if any Change in Law
shall make it unlawful for any Bank to make or maintain any LIBOR
Loan or to give effect to its obligations to make LIBOR Loans as
contemplated hereby, then, by written notice to the Borrower and
to the Administrative Agent, such Bank may:
(i) declare that LIBOR Loans will not thereafter be
made by such Bank hereunder, whereupon such Bank shall not
submit a Competitive Bid in response to a request for LIBOR
Competitive Loans and the Borrower shall be prohibited from
requesting LIBOR Revolving Credit Loans from such Bank
hereunder unless such declaration is subsequently withdrawn;
and
(ii) require that all outstanding LIBOR Loans made by
it and denominated in Dollars be converted to ABR Loans, in
which event (A) all such LIBOR Loans shall be automatically
converted to ABR Loans as of the effective date of such
notice as provided in Section 2.16(b) and (B) all payments
and prepayments of principal which would otherwise have been
applied to repay the converted LIBOR Loans shall instead be
applied to repay the ABR Loans resulting from the conversion
of such LIBOR Loans; and
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(iii)declare all outstanding LIBOR Loans made by it and
denominated in an Alternate Currency due and payable in full.
(b) For purposes of this Section 2.16, a notice to the
Borrower by any Bank pursuant to Section 2.16(a) shall be
effective on the date of receipt thereof by the Borrower.
(c) Notwithstanding the foregoing, if the affected
Bank can continue to offer LIBOR Loans by transferring LIBOR
Loans to another existing lending office of such Bank, such Bank
agrees to so transfer the LIBOR Loans unless doing so would, in
its good faith judgment, subject it to any expense or liability
or be otherwise disadvantageous to it.
SECTION 2.17. Indemnity. The Borrower shall indemnify
each Bank against any loss or reasonable expense which such Bank
may sustain or incur as a consequence of (u) the assignment of
any LIBOR Loan or Fixed Rate Loan other than on the last day of
the Interest Period applicable thereto, (v) any failure by the
Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in Article IV, (w) any failure by
the Borrower to borrow, convert, continue, or prepay hereunder
after a notice thereof pursuant to Article II has been given
(regardless whether such notice may be revoked hereunder),
(x) any payment, prepayment or conversion of a LIBOR Loan or Fixed
Rate Loan (including as a result of an Event of Default) made on
a date other than the last day of the applicable Interest Period,
(y) any default in the payment or prepayment of the principal
amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, by
notice of prepayment or otherwise), or (z) the occurrence of any
Event of Default, including in any such event, any loss or
reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a
LIBOR Loan or a Fixed Rate Loan. Such loss or reasonable expense
shall include an amount equal to the excess, if any, as
reasonably determined by each Bank of (i) its cost of obtaining
the funds for the Loan being paid, prepaid or converted or not
borrowed (based on LIBOR or, in the case of a Fixed Rate Loan,
the fixed rate of interest applicable thereto) for the period
from the date of such payment, prepayment or conversion or
failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period
for the Loan which would have commenced on the date of such
failure to borrow) over (ii) the amount of interest (as
reasonably determined by such Bank) that would be realized by
such Bank in re-employing the funds so paid, prepaid or converted
or not borrowed for such period or Interest Period, as the case
may be. A certificate of each Bank setting forth any amount or
amounts which such Bank is entitled to receive pursuant to this
Section 2.17 shall be delivered to the Borrower and shall be
conclusive, if made in good faith, absent manifest error. The
Borrower shall pay each Bank the amount shown as due on any
certificate containing no manifest error within 30 days after its
receipt of the same.
SECTION 2.18. Pro Rata Treatment. Except as permitted
under Sections 2.14, 2.15(c), 2.16 and 2.17 with respect to
interest, (i) each Revolving Credit Borrowing, each payment or
prepayment of principal of any Revolving Credit Borrowing, each
payment of interest on the Revolving Credit Loans, each payment
of the Facility Fees, each reduction of the Commitments and each
refinancing of any Borrowing with, conversion of any Borrowing to
or continuation of any Borrowing as a Revolving Credit Borrowing
of any Interest Rate Type shall be allocated pro rata among the
Banks in accordance with their respective Commitments (or, if
such Commitments shall have expired or been terminated, in
accordance with the respective principal amount of their
outstanding Revolving Credit Loans). Each payment of principal
of any Competitive Borrowing shall be allocated pro rata among
the Banks participating in such Borrowing in accordance with the
respective principal amounts of their outstanding Competitive
Loans comprising such Borrowing. Each payment of interest on any
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Competitive Borrowing shall be allocated pro rata among the Banks
participating in such Borrowing in accordance with the respective
amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of
determining the available Commitments of the Banks at any time,
each outstanding Competitive Borrowing shall be deemed to have
utilized the Commitments of the Banks (including those Banks that
shall not have made Loans as part of such Competitive Borrowing)
pro rata in accordance with such respective Commitments. Each
Bank agrees that in computing such Bank's portion of any
Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Bank's percentage of such Borrowing
computed in accordance with Section 2.01, to the next higher or
lower whole dollar amount (or amount in the basic unit of the
applicable Alternate Currency).
SECTION 2.19. Right of Setoff. If any Event of
Default shall have occurred and be continuing, each Bank is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Borrower
against any of and all the Obligations now or hereafter existing
under this Agreement and the Notes held by such Bank,
irrespective of whether or not such Bank shall have made any
demand under this Agreement or such Notes and although such
obligations may be unmatured. Each Bank agrees promptly to
notify the Borrower after any such setoff and application made by
such Bank, but the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each
Bank under this Section 2.19 are in addition to other rights and
remedies (including other rights of setoff) which such Bank may
have.
SECTION 2.20. Sharing of Setoffs. Each Bank agrees
that if it shall, through the exercise of a right of banker's
lien, setoff or counterclaim against the Borrower including, but
not limited to, a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Bank
under any applicable bankruptcy, insolvency or other similar law
or otherwise, obtain payment (voluntary or involuntary) in
respect of any Revolving Credit Note held by it (it being
understood that each Bank shall be permitted to exercise any such
right with respect to any obligation of the Borrower to it other
than the Revolving Credit Notes prior to the exercise of such
right with respect to any Revolving Credit Note) as a result of
which the unpaid principal portion of all the Revolving Credit
Notes held by it shall be proportionately less than the unpaid
principal portion of all the Revolving Credit Notes held by any
other Bank, it shall be deemed to have simultaneously purchased
from such other Bank a participation in each Revolving Credit
Note held by such other Bank, so that the aggregate unpaid
principal amount of each Revolving Credit Note and participations
in each Revolving Credit Note held by each Bank shall be in the
same proportion to the aggregate unpaid principal amount of all
the Revolving Credit Notes then outstanding as the principal
amount of all the Revolving Credit Notes held by it prior to such
exercise of banker's lien, setoff or counterclaim was to the
principal amount of all Revolving Credit Notes outstanding prior
to such exercise of banker's lien, setoff or counterclaim;
provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.20 and the
payment recovered by a Bank giving rise thereto shall thereafter
be recovered from such Bank, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustments paid by such Bank
restored to such Bank without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any Bank
holding a participation in a Revolving Credit Note deemed to have
been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim to the extent of the participation
so purchased in such Revolving Credit Note with respect to any
and all moneys owing by the Borrower as fully as if such Bank had
made a Loan directly to the Borrower in the amount of the
participation.
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SECTION 2.21. Payments. The Borrower shall make each
payment hereunder and under any instrument delivered hereunder
not later than 12:00 noon, New York City time, on the day when
due in lawful money of the United States (in freely transferable
dollars) to the Administrative Agent at its offices set forth on
Schedule 2.01 therefor, for the account of the Banks, in federal
or other immediately available funds; provided, however, that
each payment of principal and interest under any Loan made in an
Alternate Currency shall be made in immediately available funds
in the currency in which such Loan was made. Any payment
received after such time on any day shall be deemed to be
received on the next Business Day. The Administrative Agent
shall remit each Bank's portion of the Borrower's payment to such
Bank promptly after receipt thereof. Except as set forth in the
definition of "Interest Period" as applied to LIBOR Loans, if any
payment to be made hereunder or under any Note becomes due and
payable on a day other than a Business Day, such payment may be
made on the next succeeding Business Day and such extension of
time shall in such case be included in computing interest, if
any, in connection with such payment.
SECTION 2.22. United States Withholding. (a) Each
Bank or assignee or participant of a Bank that is not
incorporated under the Laws of the United States of America or a
state thereof (and, upon the written request of the
Administrative Agent, each other Bank or assignee or participant
of a Bank) agrees that it will deliver to each of the Borrower
and the Administrative Agent two (2) duly completed appropriate
valid Withholding Certificates (as defined under ss.1.1441-1(c)(16)
of the Income Tax Regulations promulgated under the Code
("Regulations")) certifying its status (i.e., U.S. or foreign
person) and, if appropriate, making a claim of reduced, or
exemption from, U.S. withholding tax on the basis of an income
tax treaty or an exemption provided by the Code. The term
"Withholding Certificate" means a Form W-9; a Form W-8BEN; a Form
W-8ECI; a Form W-8IMY and the related statements and
certifications as required under ss.1.1441-1(e)(3) of the
Regulations; a statement described in ss.1.871-14(c)(2)(v) of the
Regulations; or any other certificates under the Code or
Regulations that certify or establish the status of a payee or
beneficial owner as a U.S. or foreign person. Each Bank,
assignee or participant required to deliver to the Borrower and
the Administrative Agent a valid Withholding Certificate pursuant
to the preceding sentence shall deliver such valid Withholding
Certificate as follows: (A) each Bank which is a party hereto on
the Closing Date shall deliver such valid Withholding Certificate
at least five (5) Business Days prior to the first date on which
any interest or fees are payable by the Borrower hereunder for
the account of such Bank; (B) each assignee or participant shall
deliver such valid Withholding Certificate at least five (5)
Business Days before the effective date of such assignment or
participation (unless the Administrative Agent in its sole
discretion shall permit such assignee or participant to deliver
such Withholding Certificate less than five (5) Business Days
before such date in which case it shall be due on the date
specified by the Administrative Agent). Each Bank, assignee or
participant which so delivers a valid Withholding Certificate
further undertakes to deliver to each of the Borrower and the
Administrative Agent two (2) additional copies of such
Withholding Certificate (or a successor form) on or before the
date that such Withholding Certificate expires or becomes
obsolete or after the occurrence of any event requiring a change
in the most recent Withholding Certificate so delivered by it,
and such amendments thereto or extensions or renewals thereof as
may be reasonably requested by the Borrower or the Administrative
Agent. Notwithstanding the submission of a Withholding
Certificate claiming a reduced rate of, or exemption from, U.S.
withholding tax, the Administrative Agent shall be entitled to
withhold United States federal income taxes at the full 30%
withholding rate if in its reasonable judgment it is required to
do so under the due diligence requirements imposed upon a
withholding agent under ss.1.1441-7(b) of the Regulations.
Further, the Administrative Agent is indemnified under
ss.1.1461-1(e) of the Regulations against any claims and demands of
any Bank or assignee or participant of a Bank for the amount of
any tax it deducts and withholds in accordance with regulations
under ss.1441 of the Code. In the event the Borrower or the
Administrative Agent shall so determine that deduction or
withholding of taxes is required, it shall advise the affected
Bank as to the basis of such determination prior to actually
deducting and withholding such taxes.
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(b) Each Bank agrees (i) that as between it and the
Borrower or the Administrative Agent, unless otherwise required
by Law, it shall be the Person to deduct and withhold taxes, and
to the extent required by Law it shall deduct and withhold taxes,
on amounts that such Bank may remit to any other Person(s) by
reason of any undisclosed transfer or assignment of an interest
in this Agreement to such other Person(s) pursuant to
Section 2.23 and (ii) to indemnify the Borrower and the
Administrative Agent and any officers, directors, agents, or
employees of the Borrower or the Administrative Agent against and
to hold them harmless from any tax, interest, additions to tax,
penalties, reasonable counsel and accountants' fees,
disbursements or payments arising from the assertion by any
appropriate taxing authority of any claim against them relating
to a failure to withhold taxes as required by law with respect to
amounts described in clause (i) of this paragraph (c).
(d) Each assignee of a Bank's interest in this
Agreement in conformity with Section 2.23 shall be bound by this
Section 2.22, so that such assignee will have all of the
obligations and provide all of the forms and statements and all
indemnities, representations and warranties required to be given
under this Section 2.22.
(e) In the event that any withholding or similar taxes
shall become payable as a result of any change in any statute,
treaty, ruling, judicial decision, determination or regulation,
or other change in law (other than a change in the rate of taxes
imposed on the overall net income of any Bank) occurring after
the Initial Date in respect of any sum payable hereunder or under
any other Fundamental Document to any Bank or the Administrative
Agent or as a result of any payment being made by a Guarantor
organized in or subject to any taxing jurisdiction outside the
United States (i) the sum payable by the Borrower shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.22) such Bank or the Administrative
Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law. For
purposes of this Section 2.22, the term "Initial Date" shall mean
(i) in the case of the Administrative Agent, the date hereof,
(ii) in the case of each Bank as of the date hereof, the date
hereof and (iii) in the case of any other Bank, the date of the
Assignment and Acceptance pursuant to which it became a Bank.
SECTION 2.23. Participations; Assignments. (a) Each
Bank may without the consent of the Borrower sell participations
to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it and the Notes
held by it); provided, however, 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, (iii) the participating banks or
other entities shall be entitled to the cost protection
provisions contained in Section 2.15 and Section 2.17 but shall
not be entitled to receive pursuant to such provisions an amount
larger than its share of the amount to which the Bank granting
such participation would have been entitled and (iv) the
Borrower, the Administrative Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement;
provided further that each Bank shall retain the sole right and
responsibility vis-a-vis the Borrower to enforce the obligations
of the Borrower relating to the Loans and shall retain all voting
rights, including the right to approve any amendment,
modification or waiver of any provision of this Agreement other
than amendments, modifications or waivers with respect to any
Facility Fees, the amount of principal or the rate of interest
payable on, or the maturity of, the Loans as applicable to the
participating banks or other entities (as to which such
participating banks or other entities may be afforded the right
to vote).
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(b) Each of the Banks may (but only with the prior
written consent of the Borrower, which consent shall not be
unreasonably withheld, provided that no consent of Borrower shall
be required if any Event of Default shall have occurred and be
continuing), and (unless the assignee is a bank or trust company
with a combined capital and surplus of at least $100,000,000)
with the written consent of the Administrative Agent, which
consent shall not be unreasonably withheld, assign to one or more
banks or other entities all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion
of its Commitment and the same portion of the Revolving Credit
Loans at the time owing to it and the Revolving Credit Note held
by it); provided, however, that (i) each such assignment shall be
of a constant, and not a varying, percentage of the assigning
Bank's rights and obligations under this Agreement, and (ii) the
amount of the Commitment of the assigning Bank subject to each
such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Bank) shall be either the entire Commitment of such Bank or a
portion thereof in a principal amount of $10,000,000 or a larger
integral multiple of $1,000,000, and (iii) the parties to each
such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register (as
defined below), an Assignment and Acceptance, together with any
Note or Notes subject to such assignment and a processing and
recordation fee of $4,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date
shall be not earlier than five Business Days after the date of
acceptance and recording by the Administrative Agent, (x) the
assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder and under the other Fundamental
Documents and (y) the assigning Bank thereunder shall, to the
extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion
of the assigning Bank's rights and obligations under this
Agreement, such assigning Bank shall cease to be a party
hereto). Notwithstanding the foregoing, any Bank assigning its
rights and obligations under this Agreement may retain any
Competitive Loans made by it outstanding at such time, and in
such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in
accordance with this Agreement.
(c) Notwithstanding the other provisions of this
Section 2.23, each Bank may at any time assign all or a portion
of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment and the same portion of the Loans at any time owing to
it and the Notes held by it) to (i) any Affiliate of such Bank
described in clause (b) of the definition of Affiliate or
(ii) any other Bank hereunder.
(d) By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than the representation and
warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse
claim, the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Fundamental Documents or
any other instrument or document furnished pursuant hereto or
thereto; (ii) such Bank assignor makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any of the Subsidiaries or
any other obligor under the Fundamental Documents or the
performance or observance by the Borrower (on behalf of itself or
the Subsidiaries) or any of the Guarantors or any other obligor
under the Fundamental Documents of any of their respective
obligations under the Fundamental Documents or any other
instrument or document furnished pursuant hereto or thereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together
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with copies of the most recent financial statements delivered
pursuant to Sections 5.05(a) and 5.05(b) (or if none of such
financial statements shall have then been delivered, then copies
of the financial statements referred to in Section 3.05 hereof)
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the assigning Bank, the
Administrative Agent or any other person that has become a Bank
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement;
(v) such assignee appoints and authorizes the Administrative Agent
to take such action on its behalf as the Administrative Agent
deems appropriate and to exercise such powers under the
Fundamental Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that
it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to
be performed by it as a Bank.
(e) The Administrative Agent shall maintain at its
address at which notices are to be given to it pursuant to
Section 10.01 a copy of each Assignment and Acceptance and a
register for the recordation of the names and addresses of the
Banks and the Commitments of, and principal amount of the Loans
owing to, each Bank from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and
the Banks may treat each person whose name is recorded in the
Register as a Bank hereunder for all purposes of the Fundamental
Documents. The Register shall be available for inspection by the
Borrower or any Bank at any reasonable time and from time to time
upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee together with any
Notes subject to such assignment and evidence of the Borrower's
written consent to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and
is in the form of Exhibit E hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt written notice thereof to the
Borrower. Within five Business Days after receipt of the notice,
the Borrower, at its own expense, shall execute and deliver to
the Bank, in exchange for the surrendered Notes, as applicable
(x) a new Competitive Note to the order of such assignee in an
amount equal to the Total Commitment and a new Revolving Credit
Note to the order of such assignee in an amount equal to the
portion of the Commitment assumed by it pursuant to such
Assignment and Acceptance and, (y) a new Revolving Credit Note to
the order of the assigning Bank in an amount equal to the
Commitment retained by it hereunder. Such new Revolving Credit
Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such assumed Commitment and
retained Commitment, such new Notes shall be dated the date of
the surrendered Notes and shall otherwise be in substantially the
forms of Exhibits B-1 and B-2 hereto, as the case may be. In
addition, the Borrower will promptly, at its own expense, execute
such amendments to the Fundamental Documents to which it is a
party and such additional documents and cause the Guarantors to
execute amendments to the Fundamental Documents to which it is a
party, and take such other actions as the Administrative Agent or
the assignee Bank may reasonably request in order to confirm that
such assignee Bank is entitled to the full benefit of the
guaranties contemplated hereby to the extent of such assignment.
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(g) Notwithstanding any other provision herein, any
Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this
Section 2.23, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower
or any of the Subsidiaries furnished to such Bank or the
Administrative Agent by or on behalf of the Borrower; provided
that prior to any such disclosure, each such assignee or
participant or proposed assignee or participant shall agree in
writing to preserve the confidentiality of any confidential
information relating to the Borrower or any of their Subsidiaries
received from such Bank on the terms of Section 10.11.
(h) Any Bank may at any time pledge or assign all or
any portion of its rights under this Agreement and the Notes to a
Federal Reserve Bank.
(i) SPV Designation.
(i) Notwithstanding anything to the contrary
contained herein, any Bank (a "Designating Bank") may grant to
one or more special purpose funding vehicles (each, a "SPV"),
identified as such in writing from time to time by the
Designating Bank to the Administrative Agent and the Borrower,
the option to provide to the Borrower all or any part of any Loan
that such Designating Bank would otherwise be obligated to make
to the Borrower pursuant to this Agreement; provided that
(A) nothing herein shall constitute a commitment by any SPV to
make any Loan, (B) if an SPV elects not to exercise such option
or otherwise fails to provide all or any part of such Loan, the
Designating Bank shall be obligated to make such Loan pursuant to
the terms hereof and (C) the Designating Bank shall remain liable
for any indemnity or other payment obligation with respect to its
Commitment hereunder. The making of a Loan by an SPV hereunder
shall utilize the Commitment of the Designating Bank to the same
extent, and as if, such Loan were made by such Designating Bank.
(ii) As to any Loans or portion thereof made by
it, each SPV shall have all the rights that a Bank making such
Loans or portion thereof would have had under this Agreement;
provided, however, that each SPV shall have granted to its
Designating Bank an irrevocable power of attorney, to deliver and
receive all communications and notices under this Agreement (and
any Fundamental Documents) and to exercise, exclusively in the
place and stead of such SPV , all of such SPV's voting rights
under this Agreement in the discretion of such Designating Bank,
until the occurrence and continuation of an Event of Default. No
additional Note shall be required to evidence the Loans or
portion thereof made by an SPV; and the related Designating Bank
shall be deemed to hold its Note as agent for such SPV to the
extent of the Loans or portion thereof funded by such SPV. In
addition, any payments for the account of any SPV shall be paid
to its Designating Bank as agent for such SPV. Notwithstanding
any term or condition hereof, no SPV, unless it shall have become
a Bank hereunder in accordance with the terms of Section 2.23(b),
shall be a party hereto or have any right to vote or give or
withhold its consent under this Agreement.
(iii)Each party hereto hereby agrees that no SPV
shall be liable for any indemnity or payment under this Agreement
for which a Bank would otherwise be liable. In furtherance of
the foregoing, each party hereto hereby agrees (which agreements
shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the later of
(a) payment in full of all outstanding commercial paper or other
senior indebtedness of any SPV, (b) the payment in full of all
Obligations, and (c) the termination of all Commitments, it will
not institute against, or join any other person in instituting
against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the
United States or any state thereof.
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(iv) In addition, notwithstanding anything to the
contrary contained in these Clauses (i) through (iv) of this
Section 2.23(i) or otherwise in this Agreement (other than the
proviso set forth directly below in this Clause), any SPV may
(A) with notice to, but without the prior written consent of the
Borrower or the Administrative Agent, at any time and without
paying any processing fee therefor, assign or participate all or
a portion of its interest in any Loans to the Designating Bank or
to any financial institutions providing liquidity and/or credit
support to or for the account of such SPV to support the funding
or maintenance of Loans and (B) disclose on a confidential basis
information relating to its Loans that pertains to Borrower's
performance under the Fundamental Documents and all other
information relating to its Loans provided by Borrower pursuant
hereto, other than non-public information provided pursuant to
Section 3.05 hereof and other than any other non-public
information provided pursuant hereto to any rating agency,
commercial paper dealer or provider of any surety, guaranty or
credit or liquidity enhancements to such SPV; provided, however,
that in no event may any non-public financial information
provided by the Borrower or any Guarantor under this Agreement be
provided by any SPV to any other Person. In no event shall the
Borrower be obligated to pay to any SPV that has made a Loan any
greater amount than the Borrower would have been obligated to pay
under this Agreement if the Designating Bank had made such Loan.
These Clauses (i) through (iv) of this Section 2.23(i) may not be
amended without the written consent of any Designating Bank
affected thereby.
SECTION 2.24. Taxes.
(a) No Deductions. All payments made by Borrower
hereunder and under each Note shall be made free and clear of and
without deduction for any present or future taxes, levies,
imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on the
net income of any Bank and all income and franchise taxes
applicable to any Bank of the United States (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as
"Taxes"). If Borrower shall be required by Law to deduct any
Taxes from or in respect of any sum payable hereunder or under
any Note, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 2.24) each Bank receives an amount equal to the sum it
would have received had no such deductions been made,
(ii) Borrower shall make such deductions and (iii) Borrower shall
timely pay the full amount deducted to the relevant tax authority
or other authority in accordance with applicable Law.
(b) Stamp Taxes. In addition, Borrower agrees to pay
any present or future stamp or documentary taxes or any other
excise or property taxes, charges, or similar levies which arise
from any payment made hereunder or from the execution, delivery,
or registration of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) Indemnification for Taxes Paid by a Bank.
Borrower shall indemnify each Bank for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this
Section 2.24) paid by any Bank and any liability (including
penalties, interest, and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be
made within 30 days from the date a Bank makes written demand
therefor.
(d) Certificate. Within 30 days after the date of any
payment of any Taxes by Borrower, Borrower shall furnish to each
Bank, at its address referred to herein, the original or a
certified copy of a receipt evidencing payment thereof. If no
Taxes are payable in respect of any payment by Borrower, such
Borrower shall, if so requested by a Bank, provide a certificate
of an officer of Borrower to that effect.
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(e) Survival. Without prejudice to the survival of
any other agreement of Borrower hereunder, the agreements and
obligations of Borrower contained in Clauses (a) through (d) of
this Section 2.24 shall survive the payment in full of principal
and interest hereunder and under any instrument delivered
hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Banks that:
SECTION 3.01. Organization; Corporate Powers.
(a) Each of the Borrower and the Subsidiaries is a corporation or
other business entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
organization; (b) each of the Borrower, and the Subsidiaries
(i) has the corporate or other appropriate organizational power
and authority to own its property and to carry on its business as
now conducted and (ii) is qualified to do business in every
jurisdiction where such qualification is necessary except where
the failure so to qualify would not have a materially adverse
effect on the condition, financial or otherwise, of the Borrower
or of the Borrower and its Consolidated Subsidiaries taken as a
whole; (c) each of the Borrower and the Guarantors has the
corporate or other appropriate organizational power to execute,
deliver and perform its obligations under the Fundamental
Documents to which it is a party and the Borrower has the
corporate power to borrow hereunder and to execute and deliver
the Notes; and (d) each of the Guarantors has the corporate or
other appropriate organizational power and authority to guaranty
the Obligations as contemplated by Article VIII hereof.
SECTION 3.02. Authorization. The execution, delivery
and performance of this Agreement and the other Fundamental
Documents to which the Borrower or any of the Guarantors is or is
to be a party, by each such party; in the case of the Borrower,
the Borrowings hereunder and the execution and delivery of the
Notes; and in the case of each Guarantor, the guaranty of the
Obligations as contemplated in Article VIII (a) have been duly
authorized by all requisite corporate or other appropriate
organizational action on the part of the Borrower and each
Guarantor; and (b) will not (i) violate (A) any law, rule or
regulation of the United States or any state or political
subdivision thereof, the certificate of incorporation or By-laws
or other appropriate organizational documents of the Borrower or
any of the Consolidated Subsidiaries, (B) any applicable order of
any court or other agency of government or (C) any indenture, any
agreement for borrowed money, any bond, note or other similar
instrument or any other material agreement or contract to which
the Borrower or any of the Consolidated Subsidiaries is a party
or by which the Borrower or any of the Consolidated Subsidiaries
or any of their respective properties are bound, (ii) be in
conflict with, result in a breach of or constitute (with notice
or lapse of time or both) a default under any such indenture,
agreement, bond, note, instrument or other material agreement or
contract or (iii) result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any
property or assets of the Borrower or any of the Consolidated
Subsidiaries except that, in the case of all the above, for any
such violations, conflicts, breaches, defaults, liens, charges or
encumbrances which would not have a material adverse effect on
the Borrower and its Consolidated Subsidiaries taken as a whole
or adversely affect the rights or interests of the Banks.
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SECTION 3.03. Enforceability. This Agreement and each
other Fundamental Document to which the Borrower or any of the
Guarantors is a party, is a legal, valid and binding obligation
of each such party thereto, and is enforceable against each such
party thereto in accordance with its terms, except as the
enforceability thereof may be limited by the effect of any
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
SECTION 3.04. Governmental Approvals. No action,
consent or approval of, or registration or filing with, or any
other action by any Governmental Authority is required in
connection with the execution, delivery and performance by the
Borrower and any of the Guarantors of this Agreement or of any
other Fundamental Document to which it is a party, the Borrowings
hereunder, the guaranty by the Guarantors of the Obligations
under Article VIII or the execution and delivery of the Notes.
SECTION 3.05. Financial Statements and Condition.
(a) The Borrower has heretofore furnished to each of the Banks
audited Consolidated balance sheets of the Borrower and its
Consolidated Subsidiaries as of December 31, 2000 and the related
audited Consolidated statements of income, Consolidated
statements of stockholders' equity and Consolidated statements of
cash flows for the fiscal period then ended, together with
related notes and supplemental information. The audited
consolidated balance sheet, statement of income, statement of
stockholders' equity and statement of cash flows are referred to
herein as the "Audited Financial Statements." The Audited
Financial Statements and the notes thereto were prepared in
accordance with generally accepted accounting principles
consistently applied, and present fairly the Consolidated
financial position and results of operations and cash flows of
the Borrower and its Consolidated Subsidiaries as of the dates
and for the periods indicated, and such balance sheets and
related notes show all known direct liabilities and all known
contingent liabilities of a material nature of the Borrower and
its Consolidated Subsidiaries as of such dates which are required
to be included in such financial statements and the notes thereto
in accordance with generally accepted accounting principles.
(b) The Borrower has delivered to each of the Banks
pro forma consolidated projected financial results for the years
2001-2005. Such projected financial results are based on good
faith estimates and assumptions believed to be reasonable by
senior management of the Borrower as of the Execution Date.
(c) None of the Borrower or any Guarantor (each, a
"Credit Party") is entering into the arrangements contemplated
hereby and by the other Fundamental Documents or intends to make
any transfer or incur any obligations hereunder or thereunder,
with actual intent to hinder, delay or defraud either present or
future creditors. On and as of the date of the initial Borrowing
hereunder on a Pro Forma Basis after giving effect to all
Indebtedness (including the Loans hereunder and the Indebtedness
incurred by each Credit Party in connection therewith) (w) each
Credit Party expects the cash available to such Credit Party and
its Subsidiaries on a Consolidated basis, after taking into
account all other anticipated uses of the cash of such Credit
Party (including the payments on or in respect of debt referred
to in clause (y) of this Section 3.05(c)), will be sufficient to
satisfy all final judgments for money damages which have been
docketed against such Credit Party and such Subsidiaries or which
such Credit Party believes may be rendered against such Credit
Party and such Subsidiaries in any action in which such Credit
Party is a defendant on the Closing Date (taking into account the
reasonably anticipated maximum amount of any such judgment and
such Credit Party's belief as to the earliest time at which such
judgment might be entered); (x) the sum of the present fair
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saleable value of the assets of each Credit Party and its
Subsidiaries on a Consolidated basis will exceed the probable
liability of such Credit Party and such Subsidiaries on their
debts (including their obligations under the Guaranty); (y) no
Credit Party and its Subsidiaries on a Consolidated basis will
have incurred or intends to incur, or believes that it will
incur, debts beyond its ability to pay such debts as such debts
mature (taking into account the timing and amounts of cash to be
received by such Credit Party and such Subsidiaries from any
source, and amounts to be payable on or in respect of debts of
such Credit Party and such Subsidiaries and the amounts referred
to in clause (w)); and (z) each Credit Party and its Subsidiaries
on a Consolidated basis have sufficient capital with which to
conduct their present and proposed business and the property of
such Credit Party and such Subsidiaries does not constitute
unreasonably small capital with which to conduct their present or
proposed business. For purposes of this Section 3.05, "debt"
means any liability on a claim, and "claim" means (i) right to
payment whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed (other than those being disputed in good faith),
undisputed, legal, equitable, secured or unsecured, or (ii) right
to an equitable remedy for breach of performance if such breach
gives rise to a payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured. For purposes of this Section 3.05, "present fair
saleable value" means the amount that may be realized if any
person's assets are sold as an entirety with reasonable
promptness in an arm's-length transaction under conditions for
the sale of comparable business enterprises obtaining at the time
of determination.
SECTION 3.06. [Reserved] .
SECTION 3.07. Title to Properties. All assets of the
Borrower and the Subsidiaries are free and clear of Liens, except
such as are permitted by Section 6.01.
SECTION 3.08. Litigation. There are no actions, suits
or proceedings (whether or not purportedly on behalf of the
Borrower or any of the Subsidiaries), pending or, to the
knowledge of the Borrower, threatened against or affecting the
Borrower or any of the Subsidiaries at law or in equity or before
or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which involve any of the transactions herein
contemplated, or which have a reasonable likelihood of being
determined adversely and if determined adversely to the Borrower
or any of the Subsidiaries, would result in a material adverse
change in the business, operations, prospects, properties, assets
or condition (financial or otherwise) of the Borrower and its
Consolidated Subsidiaries taken as a whole and neither the
Borrower nor any of the Subsidiaries is in default with respect
to any judgment, writ, injunction, decree, rule or regulation of
any court or federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which default would have a materially
adverse effect on the Borrower and its Consolidated Subsidiaries
taken as a whole or have an adverse effect on the Borrower's or
the Guarantors' ability to comply with this Agreement or any
other Fundamental Document.
SECTION 3.09. Tax Returns. The Borrower and each of
the Subsidiaries have timely filed or caused to be filed all
federal, state and local tax returns which, to the knowledge of
the Borrower or such Subsidiary after due inquiry, are required
to be filed and have paid or caused to be paid all taxes required
to be paid with respect to such returns or any assessment
received by it or by any of them to the extent that such taxes
have become due, except taxes the validity of which are being
contested in good faith by appropriate actions or proceedings and
with respect to which the Borrower or such
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Subsidiary, as the case may be, shall have made such reserve, or
other adequate provision, if any, as shall be required by
generally accepted accounting principles, and except for the
filing of such returns as to which the failure to file will not,
either individually or in the aggregate, have a material adverse
effect on the Borrower and its Consolidated Subsidiaries taken as
a whole, or have an adverse effect on the Borrower's or the
Guarantors' ability to comply with this Agreement or any other
Fundamental Document.
SECTION 3.10. Agreements. (a) None of the Borrower
nor any of the Subsidiaries is subject to any charter or other
corporate restriction materially and adversely affecting its
business, properties, assets, operations or condition (financial
or otherwise) or a party to any agreement or instrument
materially and adversely affecting the business, properties,
assets, operations or condition (financial or otherwise) of the
Borrower and its Consolidated Subsidiaries taken as a whole.
None of the Borrower or any of the Subsidiaries is in default in
the performance, observance or fulfillment of any agreement or
instrument for borrowed money by which it is bound, or any other
agreement or instrument by which it is bound which individually
or in the aggregate materially and adversely affects the
business, properties, assets, operations or condition (financial
or otherwise) of the Borrower and its Consolidated Subsidiaries
taken as a whole.
(b) The Administrative Agent has been provided at or
prior to the Execution Date (i) copies of all credit agreements,
indentures and other agreements related to Indebtedness for
borrowed money of the Borrower or any of the Subsidiaries in an
amount greater than $10,000,000 and, to the extent requested by
the Administrative Agent, copies of any other credit agreements,
indentures and other agreements related to Indebtedness for
borrowed money of the Borrower or any of the Subsidiaries and
(ii) access to (and copies of, to the extent requested) any other
contracts or purchase agreements (including collective bargaining
agreements) which are material to the Borrower or the
Subsidiaries.
SECTION 3.11. Employee Benefit Plans. (a) The
Borrower and each of its ERISA Affiliates is in compliance in all
material respects with the applicable provisions of ERISA and the
Code and the regulations and published governmental
interpretations thereunder. No Reportable Event has occurred
with respect to any Plan (other than Plans which have been
terminated and as to which the Borrower and its ERISA Affiliates
do not have any significant remaining obligations or liabilities
in connection therewith) as to which the Borrower or any of its
ERISA Affiliates was required to file a report with the PBGC, and
the present value of all benefit liabilities under each Plan
maintained by the Borrower or any of its ERISA Affiliates (based
on those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto, exceed by a
material amount the value of the assets of such Plan. There has
been no Prohibited Transaction with respect to any employee
benefit plan subject to ERISA, including any Plan or to
Borrower's knowledge any Multiemployer Plan or Multiple Employer
Plan, which could result in any material liability to the
Borrower or an ERISA Affiliate. No Plan has incurred an
"accumulated funding deficiency" within the meaning of
Section 412(a) or sought or obtained a waiver under
Section 412(d)(1) or an extension of time under Section 412(e) of
the Code. No suit, action or other litigation or investigation
or a claim (excluding claims for benefits incurred in the
ordinary course of Plan activities) has been threatened or
brought against or with respect to any Plan. To the best of the
knowledge of the Borrower and each of its ERISA Affiliates (i) no
payment required to be made under any Plan would be nondeductible
under Section 280G of the Code, and (ii) in the case of each Plan
intended to qualify under Section 401(a) of the Code, all
amendments to such Plan required for the continuing qualification
of such Plan have been approved and adopted.
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(b) None of the Borrower or any of its ERISA
Affiliates has incurred any Withdrawal Liability that materially
adversely affects the financial condition of the Borrower and its
Consolidated Subsidiaries taken as a whole. None of the Borrower
or any of its ERISA Affiliates has received any notification that
any Multiemployer Plan or Multiple Employer Plan is in
reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no Multiemployer Plan or Multiple Employer
Plan is reasonably expected to be in reorganization or to be
terminated, where such reorganization has resulted or can
reasonably be expected to result in an increase in the
contributions required to be made to such Plan that would
materially and adversely affect the financial condition of the
Borrower and its Consolidated Subsidiaries taken as a whole.
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act; Federal Power Act. None of the Borrower or
the Subsidiaries is or will during the term of this Agreement be
(i) an "investment company" as the term is defined in the
Investment Company Act of 1940, as amended, (ii) subject to
regulation under the Investment Company Act of 1940, as amended,
(iii) a "holding company" as that term is defined in the Public
Utility Holding Company Act of 1935 or (iv) subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal
Power Act or any foreign, federal or local statute or regulation
limiting its ability to incur indebtedness for money borrowed or
guaranty such indebtedness as contemplated hereby.
SECTION 3.13. Federal Reserve Regulations. Subject to
Section 4.01(d), none of the Borrower or any of the Subsidiaries
is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or
carrying any margin stock (within the meaning of Regulation U).
No part of the proceeds of the Loans hereunder will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that violates, or is
inconsistent with, the provisions of Regulations T, U or X. If
requested by any Bank, the Borrower will furnish to such Bank a
statement, in conformity with the regulations, on Federal Reserve
Form U-1 referred to in said Regulation U.
SECTION 3.14. Defaults; Compliance with Laws. None of
the Borrower or any of the Subsidiaries is in default under this
Agreement or otherwise in default under any other agreements with
respect to borrowed money in an aggregate outstanding principal
amount of $10,000,000 or more. The Borrower and each of the
Subsidiaries has conducted its business and affairs so as to
comply in all respects material to the Borrower and its
Consolidated Subsidiaries taken as a whole with all applicable
federal, state and local laws and regulations.
SECTION 3.15. Use of Proceeds. Proceeds of the Loans
will be used for the purposes referred to in Section 2.03.
SECTION 3.16. Affiliated Companies. Set forth on
Schedule 3.16 hereto is a complete and accurate list of all of
the Subsidiaries of the Borrower and other persons in which the
Borrower or a Subsidiary holds voting stock or a similar interest
(other than companies as to which the Borrower or a Subsidiary,
as applicable, owns, directly or indirectly, less than 5% of the
outstanding voting stock), showing as of the Closing Date as to
Subsidiaries (i) the jurisdiction of its incorporation, (ii) the
number of shares of each class of capital stock authorized,
(iii) the number of such shares outstanding, (iv) the percentage
of such shares held directly or indirectly by the Borrower or a
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Subsidiary, as applicable, and (v) the number of such shares
covered by outstanding options, warrants, or rights held directly
or indirectly by the Borrower or a Subsidiary, as applicable;
provided, however, with respect to Clauses (ii) and (iii)
directly above, Borrower may omit the information requested by
such Clauses for all Subsidiaries having tangible assets in an
amount less than $10,000,000 and, with respect to all other
Subsidiaries organized under the laws of a jurisdiction other
than the United States or a state thereof, Borrower shall have
until forty-five (45) days after the date hereof to provide such
information by way of a supplement to, or amendment and
restatement of, Schedule 3.16 supplementing or amending solely
the information required by such Clauses for such Subsidiaries.
Except as set forth on Schedule 3.16, all of the outstanding
capital stock of all of such Subsidiaries has been validly
issued, is fully paid and nonassessable and is owned as set forth
in Schedule 3.16 (directly or indirectly) by the Borrower or a
Subsidiary, except for shares required to be owned by other
persons under applicable foreign law (which shares do not exceed,
for any such Subsidiary, 5% of the total outstanding shares of
such Subsidiary), free and clear of all Liens and any options,
warrants and other similar rights.
SECTION 3.17. Environmental Liabilities. (a) Except
as set forth on Schedule 3.17 hereof, the Borrower and the
Consolidated Subsidiaries have not used, stored, treated,
transported, manufactured, refined, handled, produced or disposed
of any Hazardous Materials on, under, at, from, or in any way
affecting any of their properties or assets, or otherwise, in any
manner which at the time of the action in question violated any
Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials and to the best of the Borrower's
knowledge, but without independent inquiry, no prior owner of
such property or asset or any tenant, subtenant, prior tenant or
prior subtenant thereof has used Hazardous Materials on, from or
affecting such property or asset, or otherwise, in any manner
which at the time of the action in question violated any
Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials, except in each instance such
violations as in the aggregate would not have a material adverse
effect upon the Borrower and the Consolidated Subsidiaries taken
as a whole.
(b) Except as set forth on Schedule 3.17, the Borrower
and its Consolidated Subsidiaries do not have any obligations or
liabilities, matured or not matured, absolute or contingent,
assessed or unassessed, which such would reasonably be expected
to have a materially adverse effect on the business or financial
condition of the Borrower and its Consolidated Subsidiaries taken
as a whole and, except as set forth in Schedule 3.17, no claims
have been made against the Borrower or any of its Consolidated
Subsidiaries during the past five years and no presently
outstanding citations or notices have been issued against the
Borrower or its Consolidated Subsidiaries, where such would
reasonably be expected to have a materially adverse effect on the
business or financial condition of the Borrower and its
Consolidated Subsidiaries taken as a whole, which in either case
have been or are imposed by reason of or based upon any provision
of any Environmental Laws, including, without limitation, any
such obligations or liabilities relating to or arising out of or
attributable, in whole or in part, to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of any Hazardous Materials by the Borrower
or the Consolidated Subsidiaries, in their respective capacities
as such, or any of their respective employees, agents,
representatives or predecessors in interest in connection with or
in any way arising from or relating to the Borrower, the
Consolidated Subsidiaries or any of their respective properties,
or relating to or arising from or attributable, in whole or in
part, to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of any such
substance, by any other Person at or on or under any of the real
properties owned or used by the Borrower, the Consolidated
Subsidiaries or any other location where such would have a
materially adverse effect on the business or financial condition
of the Borrower and its Consolidated Subsidiaries taken as whole.
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SECTION 3.18. Disclosure. Neither this Agreement nor
any agreement, document, certificate or written statement
furnished to any Bank or to the Administrative Agent for the
benefit of the Banks by or on behalf of the Borrower or any of
the Subsidiaries in connection with the transactions contemplated
hereby, at the time it was furnished contained any untrue
statement of a material fact or omitted to state a material fact,
under the circumstances under which it was made, necessary in
order to make the statements contained herein or therein not
misleading provided that no representation or warranty other than
that set forth in Section 3.05(b) is made with respect to the
projected financial results of the Borrower for the years
2001-2005. At the date hereof, there is no fact known to the
Borrower which materially and adversely affects, or in the future
is reasonably expected to materially and adversely affect, the
business, assets or financial condition, of the Borrower and its
Consolidated Subsidiaries taken as a whole (other than facts or
conditions affecting the economy generally).
SECTION 3.19. Insurance. As of the date of this
Agreement, all insurance maintained by the Borrower and its
Subsidiaries on their insurable properties and all other
insurance maintained by them is in full force and effect and all
premiums required to have been paid have been duly paid.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. All Borrowings. The obligations of each
of the Banks to make Loans hereunder on the date of each
Borrowing hereunder shall be subject to the following conditions
precedent:
(a) Notice. The Administrative Agent shall have
received a notice of such Borrowing as required by Section 2.04
or 2.05, as applicable.
(b) Representations and Warranties. The
representations and warranties set forth in Article III shall be
true and correct in all material respects on and as of the date
of such Borrowing with the same effect as if made on and as of
such date, except to the extent that such representations and
warranties expressly relate to an earlier date.
(c) No Default. The Borrower and each of the
Guarantors shall be and the Borrower shall have caused each of
the Subsidiaries to be in compliance with all of the terms and
provisions set forth herein or in any other Fundamental Document
on its part to be observed or performed, and immediately after
such Borrowing no Event of Default or event which upon notice or
lapse of time or both would constitute an Event of Default shall
have occurred and be continuing.
(d) Margin Requirements. If the proceeds of any Loans
are to be used, directly or indirectly, to purchase or carry any
margin stock or to extend credit or refund indebtedness incurred
for such purpose, the Borrower shall furnish to the
Administrative Agent an opinion of counsel reasonably
satisfactory to the Administrative Agent to the effect set forth
in paragraph 7 of Exhibit D-1 to this Agreement.
(e) Additional Documents. The Banks shall have
received from the Borrower on the date of each Borrowing such
documents and information as they may reasonably request relating
to the satisfaction of such conditions.
Each Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such
Borrowing as to the matters specified in paragraphs (b) and (c)
of this Section 4.01.
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SECTION 4.02. Closing Date. The obligations of the
Banks to make Loans hereunder are subject to the following
additional conditions precedent:
(a) Closing Date. (i) The Closing Date shall have
occurred on or before the 30th day following the Execution Date,
and (ii) on the Closing Date, there shall have been no material
adverse change in the business, assets, condition (financial or
otherwise) or results of operations of the Borrower and its
Consolidated Subsidiaries taken as a whole since December 31,
2000, except as previously disclosed in writing to the Banks
prior to the Execution Date.
(b) Notes. On the Closing Date, each Bank shall have
received a duly executed Competitive Note and Revolving Credit
Note complying with the provisions of Section 2.08.
(c) Opinions of Counsel. On the Closing Date, each
Bank shall have received the favorable written opinion of ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq., Secretary and General Counsel of the Borrower,
dated the Closing Date, addressed to each Bank and satisfactory
to ▇▇▇▇▇▇▇▇ Ingersoll, PC, counsel to the Administrative Agent,
substantially in the form of Exhibit D.
(d) Corporate Documents. On or before the Closing
Date, each Bank shall have received (i) a copy of the Certificate
of Incorporation, as amended, of each of the Borrower and each
Guarantor, certified as of a recent date by the Secretary of
State of the state of incorporation of such person; (ii) a
certificate of such Secretary of State, dated as of a recent
date, as to the good standing of, and payment of taxes by, the
Borrower and each Guarantor, as applicable, and as to the charter
documents of the Borrower and each Guarantor, as applicable, on
file in the office of each such Secretary of State; (iii) a
certificate of the Secretary of each of the Borrower and each
Guarantor, each dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of the By-laws of
the Borrower or such Guarantor, as applicable, as in effect on
the date of such certification, (B) that attached thereto is a
true and complete copy of resolutions adopted by the Board of
Directors of the Borrower or such Guarantor, authorizing the
execution, delivery and performance of the Fundamental Documents
to which it is a party, (C) that the Certificate of Incorporation
of the Borrower or such Guarantor, as applicable, has not been
amended since the date of the last amendment thereto indicated on
the applicable certificate of the Secretary of State furnished
pursuant to clause (ii) above and (D) as to the incumbency and
specimen signature of each officer of the Borrower or such
Guarantor, as applicable, executing the Fundamental Documents to
which it is a party, or any other document delivered in
connection herewith or therewith, as the case may be, (each such
certificate to contain a certification by another officer of the
Borrower or such Guarantor, as applicable, as to the incumbency
and signature of the officer signing the certificate referred to
in this clause (iii)); and (iv) such other documents as any Bank
or counsel for the Administrative Agent may reasonably request.
(e) Required Consents and Approvals. Except as noted
on Schedule 4.02, all required consents and approvals shall have
been obtained on or before the Closing Date with respect to the
transactions contemplated hereby from all Governmental
Authorities with jurisdiction over the business and activities of
the Borrower and the Subsidiaries.
(f) Federal Reserve Regulations. The Administrative
Agent shall be satisfied on or before the Closing Date that the
provisions of Regulations T, U and X of the Board will not be
violated by the transactions contemplated hereby.
(g) Contribution Agreement. The Administrative Agent
shall have received on or before the Closing Date the
Contribution Agreement, duly executed by the Borrower and each
Guarantor.
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(h) Fees and Expenses. On the Closing Date, all
accrued but unpaid Facility Fees and fees due to the Banks or
Administrative Agent, or both, all as contemplated by
Section 2.07, and all amounts referred to in Section 10.04 then
due, shall have been or shall be simultaneously paid in full.
(i) Existing Indebtedness. Concurrently with the
transactions contemplated hereby, on the Closing Date that
364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement dated as of October 23, 1997, as amended, modified, and
supplemented through the date hereof, among the Borrower, the
guarantors and banks, party thereto, and The Chase Manhattan
Bank, as Agent, and ABN AMRO Bank N.V., as Documentation Agent,
shall have been terminated.
(j) Officer's Certificate. On the Closing Date, the
Banks shall have received a certificate of Borrower provided on
its behalf by a Financial Officer dated the Closing Date
certifying (i) compliance with Section 4.01(b) and (c) hereof,
and (ii) the veracity of Section 4.02(a)(ii).
(k) Other Documents. On the Closing Date, the
Administrative Agent shall have received such other documents as
the Administrative Agent may reasonably require.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank that,
so long as this Agreement shall remain in effect or the principal
of or interest on any Note or any other expenses or amounts
payable hereunder shall be unpaid or the Commitments are in
effect, unless the Required Banks otherwise consent in writing,
it will, and it will cause each of its Subsidiaries and, with
respect to Section 5.07 only, its ERISA Affiliates to:
SECTION 5.01. Corporate Existence. Do or cause to be
done all things necessary to preserve, renew and keep in full
force and effect its corporate existence, material rights,
licenses, permits and franchises; provided that nothing in this
Section 5.01 shall prevent the abandonment or termination of the
corporate existence, rights or franchises of any Subsidiary or
the Borrower if such abandonment or termination would not have a
material adverse effect upon the business, assets, liabilities,
financial condition, results of operations or business prospects
of the Borrower and its Subsidiaries taken as a whole or the
ability of the Borrower to perform its obligations hereunder or
under any other Fundamental Document.
SECTION 5.02. Maintenance of Property. At all times
maintain and preserve all property used or useful in working
order and condition, and from time to time make, or cause to be
made, all needful and proper repairs, renewals and replacements
thereto, so that the business carried on in connection therewith
may be properly conducted at all times, except to the extent that
the failure to do so would not have a material adverse effect
upon the business, assets, liabilities, financial condition,
results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole or on the ability of the Borrower
or any Guarantor to perform its obligations hereunder or under
any other Fundamental Document.
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SECTION 5.03. Insurance. (a) Keep its insurable
properties adequately insured at all times; (b) maintain such
other insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is
customary with companies in the same or similar businesses;
(c) maintain in full force and effect public liability insurance
against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by the Borrower or any
Subsidiary, as the case may be, in such amount as the Borrower or
such Subsidiary, as the case may be, shall reasonably deem
necessary; and (d) maintain such other insurance as may be
required by law. The Borrower and the Subsidiaries may
self-insure to the extent customary with companies in the same or
similar businesses.
SECTION 5.04. Obligations and Taxes. Pay all its
indebtedness and obligations promptly and in accordance with
their terms except to the extent that the failure to do so would
not have a material adverse effect upon the business, assets,
liabilities, financial condition, results of operations or
prospects of the Borrower and its Subsidiaries taken as a whole
or on the ability of the Borrower or any Guarantor to perform its
obligations hereunder or under any other Fundamental Document and
pay and discharge promptly all taxes, assessments and
governmental charges or levies imposed upon it or upon its income
or profits or in respect of its property (and use its best
efforts to do so), prior to the time penalties would attach
thereto, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a Lien or
charge upon such properties or any part thereof; provided,
however, that none of the Borrower or any of the Subsidiaries
shall be required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so
long as the validity or amount thereof shall be contested in good
faith by appropriate actions or proceedings and the Borrower or
such Subsidiary, as the case may be, shall have made such
reserve, or other adequate provision, if any, as shall be
required by generally accepted accounting principles with respect
to any such tax, assessment, charge, levy or claim so contested.
SECTION 5.05. Financial Statements; Reports, etc.
Furnish to the Banks:
(a) As soon as available, but in any event within 90
days after the end of each fiscal year of the Borrower, the
Consolidated balance sheet as of the end of such fiscal year of
the Borrower and its Consolidated Subsidiaries, the related
Consolidated statements of income and the Consolidated statements
of cash flows for the year then ended of the Borrower and its
Consolidated Subsidiaries, the foregoing Consolidated financial
statements to be (x) examined by, and to carry the report
reasonably acceptable to the Banks of PriceWaterhouse Coopers LLC
or other independent public accountants of similar nationally
recognized standing reasonably acceptable to the Banks, and to be
in the form of the financial statements included in the
Borrower's annual report on Form 10K filed with the Securities
and Exchange Commission for the fiscal year ended December 31,
2000, and (y) accompanied by a certificate of said accountants
stating that in making the examination necessary for expressing
their opinion on such statements they have obtained no knowledge,
of a financial or accounting nature, of any violation of any of
the terms or provisions of this Agreement or any other
Fundamental Document, or of the occurrence of any condition or
event which, with notice or lapse of time or both, would
constitute an Event of Default, or, if such accountants shall
have obtained knowledge of any such violation, condition or
event, they shall specify in such certificate all such
violations, conditions and events, and the nature thereof, it
being understood that said accountants shall not be liable to
anyone for failure to obtain such knowledge. All such
Consolidated financial statements shall be compiled in reasonable
detail in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
reflected therein, except as stated therein, and fairly present
the financial position and results of operations and cash flows
of the Borrower and its Consolidated Subsidiaries for the
respective periods indicated.
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(b) As soon as available, but in any event within 60
days after the end of each of the first three fiscal quarters of
each fiscal year, an unaudited Consolidated condensed balance
sheet, and the related unaudited Consolidated condensed
statements of income for such quarter and for the then elapsed
portion of the fiscal year, and the Consolidated condensed
statements of cash flows of the Borrower and its Consolidated
Subsidiaries for the then-elapsed portion of the fiscal year, the
foregoing Consolidated condensed financial statements to be in
reasonable detail (comparable to the Consolidated condensed
financial statements for the quarter ended June 30, 1997
heretofore delivered to the Banks) and stating (with respect to
the unaudited Consolidated condensed statements of income and
cash flows) in comparative form the figures as at the end of and
for the comparable periods of the preceding fiscal year and to be
certified by a Financial Officer of the Borrower in his capacity
as such as being to the best of his knowledge and belief correct
and complete and as presenting fairly the consolidated financial
position and results of operations of the Borrower and its
Consolidated Subsidiaries in accordance with generally accepted
accounting principles (other than the omission of the notes to
the financial statements required by generally accepted
accounting principles) applied on a basis consistent with
previous fiscal years, in each case subject to normal year-end
adjustments.
(c) Concurrently with (a) and (b) above, a certificate
of a Financial Officer of the Borrower, certifying in his
capacity as such (i) that to the best of his knowledge and belief
no Event of Default, or event which with notice or lapse of time
or both would constitute such an Event of Default or event has
occurred, and, if so, specifying the nature and extent thereof
and specifying any corrective action taken or proposed to be
taken with respect thereto, (ii) that to the best of his
knowledge and belief the Borrower is in compliance with the
covenants set forth in Sections 6.09, 6.10 and 6.11,
(iii) setting forth in reasonable detail calculations
demonstrating compliance with Sections 6.01(x), 6.02, 6.04, and
6.06(c), and (iv) setting forth the calculation in reasonable
detail of the Consolidated Interest Coverage Ratio as at the end
of such fiscal quarter and for the period of four fiscal quarters
then ended treated as a single accounting period, and any change
in pricing anticipated to become effective pursuant to such
notice. In furtherance of the foregoing Clauses (ii), (iii), and
(iv), Borrower shall furnish to the Banks a certificate,
substantially in the form of Exhibit H (a "Compliance
Certificate"), evidencing such compliance and setting forth such
calculations.
(d) Promptly upon their becoming available, copies of
all financial statements, reports, notices and proxy statements
sent or made available generally by the Borrower to its public
security holders, of all regular and periodic reports and all
registration statements and prospectuses, if any, filed by the
Borrower with any securities exchange or with the Securities and
Exchange Commission, or any comparable foreign bodies, and of all
press releases and other statements made available generally by
any of them to the public concerning material developments in the
business of the Borrower.
(e) Promptly, from time to time, such other
information regarding the financial condition and business
operations of the Borrower and its Consolidated Subsidiaries as
any Bank may reasonably request (with a copy of any such written
information provided to the Administrative Agent).
SECTION 5.06. Defaults and Other Notices. Give the
Administrative Agent prompt (but in any event not later than five
Business Days after an officer of the Borrower shall become aware
of the occurrence of such event) written notice of the following:
(a) any Event of Default and any event which with
notice or lapse of time or both would constitute an Event of
Default; and
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(b) any development (other than those specified above
as to which the Administrative Agent has received due notice)
which has resulted in, or which the Borrower reasonably believes
will result in, a material adverse change in the business,
assets, liabilities or financial condition of the Borrower and
its Consolidated Subsidiaries taken as a whole or the ability of
the Borrower to perform its obligations hereunder.
SECTION 5.07. ERISA. (a) Comply in all material
respects with the applicable provisions of ERISA and the Code,
(b) cause all Plans to be funded in accordance with the minimum
funding standards of the Code and ERISA and cause all due and
owing contributions to be made to Multiemployer Plans, and
(c) furnish to the Administrative Agent (i) as soon as possible,
and in any event within 30 days after any officer of the Borrower
or any of its ERISA Affiliates knows or has reason to know that
any Reportable Event with respect to any Plan has occurred that
alone or together with any other Reportable Event with respect to
the same or another Plan could reasonably be expected to result
in liability of the Company to the PBGC in an aggregate amount
exceeding $5,000,000, a statement of a Financial Officer setting
forth details as to such Reportable Event and the action that the
Borrower proposes to take with respect thereto, together with a
copy of the notice of such Reportable Event, if any, given to the
PBGC, (ii) promptly after receipt thereof, a copy of any notice
the Borrower or any of its ERISA Affiliates may receive from the
PBGC relating to the intention of the PBGC to terminate any Plan
or Plans or to appoint a trustee to administer any such Plan,
(iii) within 10 days after a filing with the PBGC pursuant to
Section 412(n) of the Code of a notice of failure to make a
required installment or other payment with respect to a Plan, a
statement of a Financial Officer setting forth details as to such
failure and the action that the Borrower proposes to take with
respect thereto, together with a copy of such notice given to the
PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Borrower or any of its ERISA Affiliates
from the sponsor of a Multiemployer Plan or Multiple Employer
Plan, a copy of each notice received by the Borrower or any ERISA
Affiliate of the Borrower concerning (A) the imposition of
Withdrawal Liability by a Multiemployer Plan or Multiple Employer
Plan in an amount exceeding $5,000,000 or (B) a determination
that a Multiemployer Plan or Multiple Employer Plan is, or is
expected to be, terminated or in reorganization, both within the
meaning of Title IV of ERISA, and which, in each case, is
expected to result in an increase in annual contributions of the
Borrower or any of its ERISA Affiliates to such Multiemployer
Plan or Multiple Employer Plan in an amount exceeding $5,000,000.
SECTION 5.08. Access to Premises and Records.
Maintain the financial records of the Borrower and its
Consolidated Subsidiaries in accordance with generally accepted
accounting principles and permit representatives of the Banks to
have access, at all reasonable times upon reasonable notice, to
the Borrower and any of its Subsidiaries and their properties and
to make such excerpts from such financial books and records as
such representatives reasonably request and to discuss the
business, operations, properties and financial and other
condition of the Borrower and such Subsidiaries with officers and
employees of the Borrower and such Subsidiaries and the
independent certified public accountants of the Borrower;
provided that no Bank shall purchase, sell or otherwise acquire or
dispose of any interest in a security of the Borrower in the
public markets on the basis of any material nonpublic information
so obtained.
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SECTION 5.09. Compliance with Laws, etc. The Borrower
and its Subsidiaries shall comply in all material respects with
the requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority, except to the extent that
the failure to do so would not have a material adverse effect
upon the business, assets, liabilities, financial condition,
results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole or on the ability of the Borrower
or any Guarantor to perform its obligations hereunder or under
any other Fundamental Document. If any authorization or approval
or other action by, or notice to or filing with, any Governmental
Authority is required for the performance by the Borrower of this
Agreement or any other Fundamental Document, the Borrower will
promptly obtain such approval or make such notice or filing and
shall provide satisfactory evidence thereof to the Administrative
Agent.
SECTION 5.10. Security Interests. If any property of
the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, is subjected to any Lien not permitted by
Section 6.01, the Borrower will make, or will cause to be made,
effective provision whereby the Obligations shall be secured
equally and ratably with all other obligations secured by such
Lien, and, if such provision is not made, an equitable lien, so
equally and ratably securing the Obligations, shall exist on such
property to the full extent permitted under applicable law; it
being understood that the Borrower's compliance with the
provisions of this Section 5.10 shall not, in any way, constitute
a cure by the Borrower or a waiver by the Banks of the Borrower's
failure to perform or observe any of the covenants or agreements
in Section 6.01.
SECTION 5.11. Subsidiary Guarantors. Promptly upon
any person incorporated in the United States becoming a
Subsidiary that is a Material Subsidiary, or upon any Subsidiary
incorporated in the United States becoming a Material Subsidiary,
the Borrower agrees that it or the other direct owner of such
Subsidiary shall cause such Subsidiary to sign such an instrument
substantially in the form of Exhibit G hereto, under which such
Subsidiary shall become a party hereto and to the Contribution
Agreement, the other Fundamental Documents (to the extent that
Guarantors are parties thereto), and the Intercreditor Agreement,
in each case as a Guarantor and assume all obligations of a
Guarantor under the Credit Agreement, all in a manner
satisfactory to the Administrative Agent and its counsel;
provided, however, the Borrower shall be permitted at any time to
cause any of its Subsidiaries not then subject to this
Section 5.11 to become a party to this Agreement and the other
agreements set forth above in accordance with the requirements
hereof, and provided further that, in the case of any additional
Guarantor that is organized under the laws of a jurisdiction
other than the United States or a state thereof, the
Administrative Agent on behalf of the Banks and itself shall have
received an opinion of counsel, admitted to practice in the
relevant foreign jurisdiction, in form and substance satisfactory
to the Administrative Agent.
SECTION 5.12. Environmental Laws. (a) Promptly
notify the Administrative Agent upon any Senior Officer of the
Borrower becoming aware of any violation or noncompliance with,
or liability under any Environmental Laws which, when taken
together with all other pending violations would reasonably be
expected to be materially adverse to the Borrower and the
Consolidated Subsidiaries taken as a whole, and promptly furnish
to the Administrative Agent all notices of any nature which the
Borrower or any Consolidated Subsidiaries may receive from any
Governmental Authority or other Person with respect to any
violation, or potential violation or noncompliance with, or
liability or potential liability under any Environmental Laws
which, in any case or when taken together with all such other
notices, would reasonably be expected to have a material adverse
effect on the Borrower and the Consolidated Subsidiaries taken as
a whole.
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(b) Comply with and use reasonable efforts to ensure
compliance by all tenants and subtenants with all Environmental
Laws, and obtain and comply in all material respects with and
maintain and use reasonable efforts to ensure that all tenants
and subtenants obtain and comply in all material respects with
and maintain any and all licenses, approvals, registrations or
permits required by Environmental Laws.
(c) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under all Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities.
(d) Defend, indemnify and hold harmless the
Administrative Agent and the Banks, and their respective
employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way
related to the violation of or noncompliance with any
Environmental Laws, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without
limitation, reasonable attorney and consultant fees,
investigation and laboratory fees, court costs and litigation
expenses, but excluding therefrom all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses
arising out of or resulting from (i) the gross negligence or
willful misconduct of such indemnified party or (ii) any acts or
omissions of any indemnified party occurring after such
indemnified party is in possession of, or controls the operation
of, any property or asset.
SECTION 5.13. Senior Debt Status. Maintain the
Obligations on at least a pari passu basis in priority of payment
with all other Indebtedness of Borrower and the Guarantors,
except with respect to Indebtedness to the extent secured by
Liens permitted by Section 6.01.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with the Banks that,
so long as this Agreement shall remain in effect or the principal
of or interest on any Note or any other expenses or amount
payable hereunder shall be unpaid or the Commitments are in
effect, unless the Required Banks otherwise consent in writing,
it will not, and it will not cause or permit any of its
Subsidiaries, directly or indirectly, to:
SECTION 6.01. Liens. Incur, create or permit to exist
any Lien on (or sale and leaseback transaction with respect to)
any property, assets or stock owned or hereafter acquired by the
Borrower or any of its Subsidiaries, other than Liens in favor of
the Administrative Agent for the benefit of the Banks and:
(i) Liens for taxes, assessments or governmental
charges or levies not yet delinquent or thereafter payable
without penalty for nonpayment or (if foreclosure,
distraint, sale or other similar proceedings shall not have
been commenced) being contested in good faith and by
appropriate actions or proceedings promptly initiated and
diligently conducted, if such reserve or other appropriate
provision, if any, as shall be required by generally
accepted accounting principles shall have been made therefor;
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(ii) Liens of carriers, warehousemen, mechanics and
materialmen incurred in the ordinary course of business for
sums not yet due or being contested in good faith and by
appropriate actions or proceedings promptly initiated and
diligently conducted, if such reserve or other appropriate
provision, if any, as shall be required by generally
accepted accounting principles shall have been made therefor;
(iii) Liens incurred or deposits made in the
ordinary course of business, in connection with workers'
compensation, unemployment insurance and other social
security, or to secure the performance of bids, tenders,
leases, contracts (other than the repayment of borrowed
money), statutory obligations, surety, customs and appeal
bonds;
(iv) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers,
restrictions on the use of real property or minor
irregularities of title to real property (and with respect
to leasehold encumbrances or interests, mortgages,
obligations, liens and other encumbrances incurred, created,
assumed or permitted to exist and arising by, through or
under or asserted by a landlord or owner of the leased
property, with or without consent of the lessee), none of
which materially impairs the use of any parcel of real
property material to the operation of the business of the
owner thereof or the value of such property for the purpose
of such business;
(v) Liens securing purchase money Indebtedness of the
Borrower and its Subsidiaries; provided that (A) such Liens
shall not encumber any property other than the property
acquired, (B) the Indebtedness secured thereby does not
exceed the purchase price of such property, and (C) such
transaction does not otherwise violate this Agreement;
(vi) Liens upon assets of a corporation existing at
the time such corporation is merged into or consolidated
with the Borrower or a Subsidiary or at the time of its
acquisition by the Borrower or a Subsidiary or its becoming
a Subsidiary; provided that such Lien does not spread to any
other asset at any time owned by the Borrower or any
Subsidiary;
(vii) Liens in existence on the date hereof which
are listed in Schedule 6.01 (which Schedule includes all
such Liens (other than Liens of the types described in
paragraphs (i) through (v) above) securing obligations in
excess of $500,000);
(viii) Liens arising out of the renewal or
refunding of any Indebtedness of the Borrower and its
Subsidiaries secured by Liens permitted by the foregoing;
provided that the aggregate principal amount of such
Indebtedness is not increased and is not secured by
additional assets and the Indebtedness secured by the Lien
is permitted under this Agreement;
(ix) Liens in connection with attachments, judgments
or awards as to which an appeal or other appropriate
proceedings for contest or review are promptly commenced and
diligently pursued in good faith (and as to which
foreclosure and other enforcement proceedings shall not have
been commenced (unless fully bonded or otherwise effectively
stayed)); and
(x) other Liens on assets with an aggregate book value
for all such assets subject to Liens, which when added to
the aggregate book value of assets subject to Sale and
Leaseback Transactions permitted under Section 6.06(c), do
not at the time in effect exceed 10% of Consolidated Net
Worth.
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SECTION 6.02. Indebtedness. Permit any of the foreign
Subsidiaries or any domestic Subsidiaries which are not
Guarantors hereunder to incur, create, assume, become or be
liable in any manner with respect to, or permit any of such
Subsidiaries to permit or suffer to exist, any Indebtedness,
unless after giving effect to such Indebtedness the total
Indebtedness of all such Subsidiaries is no greater than 15%
of Consolidated Net Worth; provided, however, this
Section 6.02 shall not apply to any Subsidiary which becomes
a Guarantor hereunder in accordance with Section 5.11
hereof.
SECTION 6.03. Mergers, Consolidations, Sales of Assets
and Acquisitions. Neither the Borrower nor any Subsidiary (in
one transaction or series of transactions) will wind up,
liquidate or dissolve its affairs, or enter into any transaction
of merger or consolidation, or sell or otherwise dispose of all
or any part of its property or assets, except:
(a) mergers between the Borrower and a Subsidiary
(provided that Borrower shall be the surviving corporation)
or between Subsidiaries;
(b) sales of inventory, marketable securities,
receivables owed to a foreign subsidiary and receivables of
the Borrower or any Subsidiary from export sales, in each
case in the ordinary course of business;
(c) sales permitted pursuant to Section 6.06;
(d) subject to Section 6.03(e) below, any merger (other
than as described in (a) above), consolidation, dissolution
or liquidation; provided, however, that (i) immediately
prior to and on a Pro Forma Basis after giving effect to
such transaction no Default or Event of Default has occurred
or is continuing, (ii) if such transaction involves a Person
other than the Borrower and its Subsidiaries, the
Administrative Agent shall promptly receive a certificate of
a Financial Officer of the Borrower confirming that such
transaction complies with the requirements set forth in this
section and (iii) if such transaction involves the Borrower,
the Borrower is the surviving entity;
(e) a disposition of less than substantially all of the
assets of the Borrower and its Subsidiaries, taken as a
whole, (i) for consideration which represents fair market
value (as reasonably determined in good faith by the
Borrower's Board of Directors) or, at a price determined by
the Board of Directors of the Borrower to be in the best
interests of the Borrower under circumstances where the
Board of Directors of the Borrower deems a sale on terms
other than fair market value to be in the best interest of
the Borrower, (ii) immediately prior to and on a Pro Forma
Basis after giving effect thereto, no Event of Default or
Default shall have occurred and be continuing and (iii) if
the transaction involves consideration of $20,000,000 or
more, the Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
confirming that such transaction complies with the
requirements set forth in this section; and
(f) acquisitions of an interest in any business from
any Person (whether pursuant to a merger, an acquisition of
stock, assets, a business unit or otherwise); provided that
(i) immediately prior to and on a Pro Forma Basis after
giving effect thereto, no Event of Default or Default shall
have occurred and be continuing and (ii) if the transaction
involves consideration equal to or in excess of $10,000,000,
the Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
confirming that such transaction complies with the
requirements set forth in this section.
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SECTION 6.04. Change of Business. Engage in any
business activities other than those related or incidental
to its present business activities, namely, the manufacture
and wholesale distribution of (i) dental supplies and
equipment, (ii) medical/industrial supplies and equipment
and (iii) other healthcare products; provided that (x) the
business activities, described in clause (iii) shall not at
any time represent more than 20% of the Consolidated Net
Income of the Borrower and the Subsidiaries as of the end of
the then most recently completed fiscal year of the
Borrower, and (y) the assets of the business activities
described in clause (iii) shall not at any time represent
more than 20% of the Consolidated assets of the Borrower and
the Subsidiaries.
SECTION 6.05. Transactions with Affiliates. Enter
into any transactions with or provide any employee benefits to
any Affiliate of the Borrower or any Subsidiary except (a) in the
ordinary course of business and upon fair and reasonable terms no
less favorable than the Borrower or the Subsidiary concerned
could, in the good faith judgment of senior management of the
Borrower, obtain or could become entitled to in an arm's-length
transaction with a person or entity which was not an Affiliate of
the Borrower or such Subsidiary, (b) transactions involving the
Borrower and one or more Subsidiaries exclusively, (c)
transactions involving two or more Subsidiaries exclusively,
(d) transactions with the ESOP or other similar foreign employee
stock ownership plans of Subsidiaries of the Borrower which do
not materially and adversely affect the interests of the
Administrative Agent or the Banks under the Fundamental
Documents, and (e) transactions otherwise expressly permitted
hereunder.
SECTION 6.06. Sale and Leaseback. Enter into any
arrangement, directly or indirectly, with any person whereby it
shall sell or transfer any property, whether real or personal,
and used or useful in its business, whether now owned or
hereafter acquired, if the Borrower or any of its Subsidiaries at
the time of such sale or disposition intends to lease or
otherwise acquire the right to use or possess (except by
purchase) such property or like property for a substantially
similar purpose (a "Sale and Leaseback Transaction") except:
(a) the Des Plaines Lease;
(b) for any such Sale and Leaseback Transaction in
which the property is sold by the Borrower to a Subsidiary
or by a Subsidiary to the Borrower or another Subsidiary; or
(c) the Borrower or any Subsidiary may enter into any
Sale and Leaseback Transaction if (i) at the time of such
Sale and Leaseback Transaction no Default or Event of
Default shall have occurred and be continuing, (ii) the
proceeds from the sale of the subject property shall be
equal to not less than 80% of its fair market value (as
reasonably determined by the Borrower's Board of Directors)
and (iii) after giving effect to such Sale and Leaseback
Transaction, the aggregate book value of all assets of the
Borrower and the Subsidiaries subject to Sale and Leaseback
Transactions when added to the aggregate book value of
assets subject to Liens permitted under Section 6.01(x) and
excluding those described in paragraphs (a) and (b) above,
shall not at any time exceed 10% of Consolidated Net Worth.
SECTION 6.07. Dividends by Subsidiaries. Create,
incur, assume or permit to exist any agreement or instrument
which has the effect of restricting or prohibiting the power,
authority or legal right of such Subsidiary to declare or pay any
dividend or other distribution.
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SECTION 6.08. Amendments to Certain Documents. Amend,
modify or otherwise change (a) any covenant or event of default
in any material indenture or other material agreement or material
instrument relating to any Indebtedness or (b) any of its
constitutive documents, in either case in any manner materially
adverse to the interests of the Administrative Agent or the Banks
under the Fundamental Documents.
SECTION 6.09. Minimum Consolidated Net Worth. Permit
Consolidated Net Worth at any time to be less than (x)
$450,000,000 plus (y) 25% of aggregate Consolidated Net Income
for each full fiscal quarter for which such Consolidated Net
Income is positive that shall have been completed during the
period from the Closing Date to the date of determination.
SECTION 6.10. Interest Coverage. Permit the
Consolidated Interest Coverage Ratio at the end of any fiscal
quarter to be less than 3.5 to 1.0 for the period of the four
consecutive fiscal quarters then ended treated as a single
accounting period.
SECTION 6.11. Debt Ratio.
(a) In the event that the Proposed Acquisition occurs
no later than August 30, 2001, then upon and after the
Proposed Acquisition, permit the Debt Ratio at any such time
through December 31, 2002, to be greater than 0.60 to 1.0 or
permit the Debt Ratio at any time after December 31, 2002,
to be greater than 0.50 to 1.0.
(b) Prior to the date of the Proposed Acquisition or
in the event that the Proposed Acquisition does not occur by
August 30, 2001, permit the Debt Ratio at any such time
through May 24, 2002, to be greater than 0.55 to 1.0 or
permit the Debt Ratio at any time thereafter to be greater
than 0.50 to 1.0.
SECTION 6.12. Fiscal Year. Change its fiscal year or
modify or change accounting treatments or reporting practices
except as otherwise permitted or required by generally accepted
accounting principles.
ARTICLE VII
EVENTS OF DEFAULT
In the case of the happening of any of the following
events (hereinafter called "Events of Default"):
(a) any representation or warranty made by the Borrower
or any of the Guarantors in connection with this Agreement
or any other Fundamental Document or with the execution and
delivery of the Notes or the borrowings hereunder or any
statement or representation made in any report, certificate,
financial statement or other instrument furnished by the
Borrower or any of the Guarantors to the Banks or the
Administrative Agent pursuant to this Agreement or any other
Fundamental Document shall prove to have been false or
misleading in any material respect when made or delivered;
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(b) default shall be made in the payment of the
principal of or interest on any Note or of any fees or other
amounts payable by the Borrower hereunder, when and as the
same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise, and, in the case of
interest, such default shall continue unremedied for five
Business Days;
(c) default shall be made with respect to the payment
of any amount due under any agreement or other evidence of
Indebtedness for borrowed money (other than the Notes) of
the Borrower or any of the Subsidiaries in an aggregate
outstanding principal amount of $10,000,000 or more; or any
other default shall be made with respect to any such
Indebtedness and such Indebtedness shall have been
accelerated so that any payment in respect of such
Indebtedness shall be or become due prior to its maturity or
scheduled due date;
(d) default shall be made in the due observance or
performance of any covenant, condition or agreement on the
part of the Borrower on its own behalf or on behalf of any
of the Subsidiaries or any of the Guarantors contained in
Article VI or Article VIII hereof; provided that in the case
of a default under Section 6.01, resulting solely from
incurrence of a prohibited obligation by a Subsidiary
without the approval or knowledge of any officer of the
Borrower, such default shall continue unremedied for 30 days;
(e) the guaranty under Article VIII hereof shall (i)
not remain in full force and effect, be declared null and
void or shall not be enforceable against the Guarantors in
accordance with its terms and such guaranty shall not be
reinstated to full force and effect and enforceability
against the Guarantors in accordance with its terms within
30 days or (ii) be disaffirmed or repudiated by the Borrower
or any such Guarantor;
(f) default shall be made in the due observance or
performance of any other covenant, condition or agreement to
be observed or performed by the Borrower on its own behalf
or on behalf of any of the Subsidiaries or any of the
Guarantors pursuant to the terms hereof or of any other
Fundamental Document and such default shall continue
unremedied for a period equal to the sum of 30 days after
such failure shall have first occurred plus an additional
three Business Days;
(g) the Borrower or any Material Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code or
any other federal or state bankruptcy, insolvency or similar
law now or hereafter in effect, (ii) consent to the
institution of, or fail to controvert in a timely and
appropriate manner, any such proceeding or the filing of any
such petition, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar
official for the Borrower or any such Material Subsidiary or
for a substantial part of its property, (iv) file an answer
admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take corporate action for
the purpose of effecting any of the foregoing;
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(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower
or any Material Subsidiary, or of a substantial part of its
property, under Title 11 of the United States Code or any
other federal or state bankruptcy, insolvency or similar law
now or hereafter in effect, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar
official for the Borrower or such Material Subsidiary or for
a substantial part of its property or (iii) the winding-up
or liquidation of the Borrower or such Material Subsidiary;
and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any
of the foregoing shall continue unstayed and in effect for
30 days;
(i) a final judgment for the payment of money (which
alone, or when aggregated with all other such unpaid
judgments to the extent not fully covered by insurance from
financially sound and reputable insurers against the
Borrower and its Subsidiaries at such time, is for
$10,000,000 or more) shall be rendered against the Borrower
or any of the Subsidiaries and the same shall remain
undischarged for a period of 60 days or any action is taken
by the judgment creditor to levy thereon;
(j) a Reportable Event or Reportable Events, or a
failure to make a required payment (within the meaning of
Section 412(n)(1)(A) of the Code) shall have occurred with
respect to any one or more Plans or Multiemployer Plans
that reasonably could be expected to result in liability of
the Borrower to the PBGC or to a Plan in an aggregate amount
exceeding $10,000,000 and, within 30 days after the
reporting of any such Reportable Event to the Administrative
Agent or after the receipt by the Administrative Agent of
the statement required pursuant to Section 5.07(b)(iii)
hereof, the Administrative Agent shall have notified the
Borrower in writing that (i) the Required Banks have made a
determination that, on the basis of such Reportable Event or
Reportable Events or the receipt of such statement, there
are reasonable grounds (A) for the termination of such Plan
or Plans by PBGC, (B) for the appointment by the appropriate
United States District Court of a trustee to administer such
Plan or Plans or (C) for the imposition of a Lien in favor
of a Plan and (ii) as a result thereof an Event of Default
exists hereunder; or a trustee shall be appointed by a
United States District Court to administer any such Plan or
Plans; or the PBGC shall institute proceedings to terminate
any Plan or Plans;
(k) (i) the Borrower or any of its ERISA Affiliates
shall have been notified by the sponsor of a Multiemployer
Plan or Multiple Employer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan or Multiple
Employer Plan, (ii) the Borrower or any such ERISA Affiliate
does not have reasonable grounds for contesting such
Withdrawal Liability and is not in fact contesting such
Withdrawal Liability in a timely and appropriate manner, and
(iii) the amount of such Withdrawal Liability specified in
such notice, when aggregated with all other amounts required
to be paid to Multiemployer Plans and Multiple Employer
Plans in connection with Withdrawal Liabilities (determined
as of the date or dates of such notification), exceeds
$10,000,000 or requires payments exceeding $10,000,000 in
any year;
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(l) the Borrower or any of its ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan or
Multiple Employer Plan that such Multiemployer Plan or
Multiple Employer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if
solely as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and its ERISA
Affiliates to all Multiemployer Plans and Multiple Employer
Plans that are then in reorganization or have been or are
being terminated have been or will be increased over the
amounts required to be contributed to such Multiemployer
Plans for their most recently completed plan years by an
amount exceeding $10,000,000 in any year; or
(m) (i) a person or two or more persons acting in
concert (excluding the ESOP and any other person who holds
5% or more of the outstanding shares of voting stock of the
Borrower as of the Closing Date) shall acquire beneficial
ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities
Exchange Act of 1934) of more than 40% of the outstanding
shares of voting stock of the Borrower, or (ii) the
individuals who, as of such Closing Date, are members of the
Board of Directors of the Borrower (the "Incumbent Board")
shall cease to constitute at least a majority of the Board
of Directors of the Borrower; provided, however, that if the
election, or nomination for election of any new director was
approved by a vote of at least a majority of the Incumbent
Board or any nominating committee thereof, such new director
shall, for purposes hereof, be considered as a member of the
Incumbent Board;
then, and in every such event and at any time thereafter during
the continuance of such event, the Administrative Agent may
(unless, in the case of each Event of Default other than that
specified in paragraph (b) above, the Required Banks shall have
waived such Event of Default in writing, and, in the case of an
Event of Default specified in paragraph (b) above, each of the
Banks shall have waived such Event of Default in writing), and,
upon direction of the Required Banks, will by written notice to
the Borrower, take any of the following actions, at the same or
different times: (i) terminate the Commitments and (ii) declare
the Notes to be forthwith due and payable, whereupon the Notes
and all other fees and amounts owing hereunder shall become
forthwith due and payable, both as to principal and interest,
without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived, anything
contained herein or in the Notes to the contrary
notwithstanding. Notwithstanding the foregoing, if an Event of
Default specified in paragraph (g) or (h) above occurs with
respect to the Borrower or a Guarantor, the Notes shall become
immediately due and payable, both as to principal and interest,
without any action by the Administrative Agent and without
presentment, demand, protest or any other notice of any kind, all
of which are hereby expressly waived, anything contained herein
or in the Notes to the contrary notwithstanding.
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty. (a) Each Guarantor hereby,
jointly and severally, unconditionally and irrevocably guaranties
to the Banks and the Administrative Agent the due and punctual
payment by and performance of the Obligations (including interest
accruing on and after the filing of any petition in bankruptcy or
reorganization of the applicable obligor whether or not
post-filing interest is allowed in such proceeding) by the
Borrower.
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(b) Each Guarantor waives notice of acceptance of this
guaranty and also waives presentation to, demand of payment from
and protest to the Borrower of any of the Obligations, as well as
notice of protest for nonpayment and all other formalities. The
obligations of each Guarantor hereunder shall not be affected by
(i) the failure of the Administrative Agent or the Banks to
assert any claim or demand or to enforce any right or remedy
against the Borrower under this Agreement or otherwise; (ii) any
extension or renewal of any of the Obligations; (iii) any
rescission, waiver, amendment or modification of any of the terms
or provisions of this Agreement or any other agreement or
instrument; (iv) the taking or release of any security held by
the Banks or the Administrative Agent for the performance of any
of the Obligations; (v) the failure of the Administrative Agent
or the Banks to exercise any right or remedy against the Borrower
or any other guarantor of the Obligations; (vi) any stay in
bankruptcy or insolvency proceedings of the Borrower or any other
Person; or (vii) the release or substitution of any other
Guarantor.
(c) Each Guarantor agrees that this guaranty
constitutes a guaranty of payment when due and not of collection
and waives any right to require that any resort be had by the
Banks or the Administrative Agent to any security held for
payment of the Obligations or to any balance of any deposit
account or credit on the books of the Banks or the Administrative
Agent in favor of the Borrower or any other person.
SECTION 8.02. No Impairment of Guaranty. The
obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any
defense, setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Banks or the
Administrative Agent to assert any claim or demand or to enforce
any remedy under this Agreement or any other agreement or
instrument, by any waiver or modification of any thereof by the
Banks or the Administrative Agent, by any default, failure or
delay, willful or otherwise, in the performance of the
Obligations or by any other act or omission or delay to do any
other act which might in any manner or to any extent vary the
risk of any Guarantor or which would otherwise operate as a
discharge of a guarantor as a matter of law.
SECTION 8.03. Continuation and Reinstatement, etc.
Each Guarantor further agrees that this guaranty shall continue
to be effective or be reinstated, as the case may be, if at any
time any payment on any Obligation is rescinded or must otherwise
be restored by the Banks upon the bankruptcy or reorganization of
the Borrower or otherwise.
SECTION 8.04. Payment, etc. (a) In furtherance of
the foregoing and not in limitation of any other right which the
Banks or the Administrative Agent may have at law or in equity
against any Guarantor by virtue hereof, upon the failure of the
Borrower to pay or perform any Obligation when and as the same
shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, each Guarantor hereby promises
to and will, upon receipt of written demand by the Banks or the
Administrative Agent, forthwith pay, or cause to be paid, in
cash, to the Administrative Agent, an amount equal to the sum of
(i) the unpaid principal amount of such Obligations, (ii) accrued
and unpaid interest on such Obligations and (iii) all other
unpaid Obligations of the Borrower to the Administrative Agent
and the Banks.
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(b) Each Guarantor agrees that to the fullest extent
permitted by applicable law, all rights against the Borrower
arising as a result of any payment by any Guarantor under this
guaranty by way of right of subrogation or otherwise shall in all
respects be junior and subordinate in right of payment to the
prior indefeasible payment in full of all the Obligations to the
Administrative Agent for the benefit of the Banks. If after the
Borrower has failed to pay any Obligation when due, any amount
shall be paid to any Guarantor for the account of the Borrower,
such amount shall be held in trust for the benefit of the
Administrative Agent and shall forthwith be paid to the
Administrative Agent on behalf of the Banks to be credited and
applied to the Obligations when due and payable.
(c) Each Guarantor waives notice of and hereby
consents to any agreements or arrangements whatsoever by the
Banks or the Administrative Agent with the Borrower, or anyone
else, including agreements and arrangements for payment,
extension, subordination, composition, arrangement, discharge or
release of the whole or any part of the Obligations, or for the
discharge or surrender of any or all security, or for compromise,
whether by way of acceptance of part payment or otherwise, and
the same shall in no way impair such Guarantor's liability
hereunder. Nothing shall discharge or satisfy the liability of
any Guarantor hereunder except the full performance and payment
of the Obligations.
SECTION 8.05. Benefit to Guarantors. Each Guarantor
acknowledges that it has realized a direct economic benefit as a
result of the refinancing of the loans outstanding under that
364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement dated as of October 23, 1997, as amended, modified, and
supplemented through the date hereof, among the Borrower, the
guarantors and banks, party thereto, and The Chase Manhattan
Bank, as Agent, and ABN AMRO Bank N.V., as Documentation Agent,
and the availability to it of the proceeds of Loans that have
been or may in the future be made hereunder.
SECTION 8.06. Modification to Conform to Law.
(a) Without limiting the generality of Section 10.08,
to the extent that applicable law (including applicable laws
pertaining to fraudulent or preferential transfer) otherwise
would render the full amount of the Guarantor's obligations
hereunder invalid, voidable, or unenforceable on account of the
amount of a Guarantor's aggregate liability under this guaranty,
then, notwithstanding any other provision of this guaranty to the
contrary, the aggregate amount of such liability shall, without
any further action by the Administrative Agent or any of the
Banks or such Guarantor or any other Person, be automatically
limited and reduced to the highest amount which is valid and
enforceable as determined in such action or proceeding, which
(without limiting the generality of the foregoing) may be an
amount which is equal to the greater of:
(i) the fair consideration actually received by
such Guarantor under the terms and as a result of the Fundamental
Documents (including the Contribution Agreement) and the value of
the benefits derived by such Guarantor from credit granted to its
Affiliates and the synergistic benefits of such affiliation and
including distributions, commitments, and advances made to or for
the benefit of such Guarantor with the proceeds of any credit
extended under the Fundamental Documents, or
(ii) the excess of (1) the amount of the fair
value of the assets of such Guarantor (as of the date of this
guaranty or other date relevant to the applicable law which would
render the full amount of the Guarantor's obligations hereunder
invalid, voidable, or unenforceable) determined in accordance
with applicable federal and state laws governing determinations
of the insolvency of debtors, over (2) the amount of all
liabilities of such Guarantor as of such date, also as determined
on the basis of applicable federal and state laws governing the
insolvency of debtors.
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(b) Notwithstanding anything to the contrary in this
Article VIII, the guaranty hereby given in this Agreement shall
be presumptively valid and enforceable to its fullest extent in
accordance with its terms, as if this Section 8.06 were not a
part of this guaranty, and in any related litigation the burden
of proof shall be on the party asserting the invalidity,
voidability, or unenforceability of any provision of this Article
VIII or asserting any limitation on any Guarantor's obligations
hereunder as to each element of such assertion.
SECTION 8.07. Additional Guarantors. At any time
after the initial execution and delivery of this Agreement to the
Administrative Agent and the Banks, additional Persons may become
parties to this guaranty and thereby acquire the duties and
rights of being Guarantors hereunder by executing and delivering
to the Administrative Agent and the Banks a Joinder and
Assumption Agreement, substantially in the form of Exhibit G
hereto. No notice of the addition of any Guarantor shall be
required to be given to any pre-existing Guarantor and each
Guarantor hereby consents thereto and affirms that its
obligations shall continue hereunder undiminished.
ARTICLE IX
ADMINISTRATIVE AGENT
SECTION 9.01. Appointment of Administrative Agent. In
order to expedite the various transactions contemplated by this
Agreement, ABN AMRO Bank N.V. is hereby appointed to act as
Administrative Agent on behalf of the Banks. Each Bank
irrevocably authorizes and directs the Administrative Agent to
take such action on behalf of such Bank under the terms and
provisions of this Agreement and to exercise such powers
hereunder as are specifically delegated to or required of the
Administrative Agent by the terms and provisions hereof, together
with such powers as are reasonably incidental thereto. Without
limiting the generality of the foregoing, each of the Banks
hereby agrees to the provisions of that draft Intercreditor
Agreement, substantially in the form of Exhibit F, and authorizes
the Administrative Agent to execute and deliver an Intercreditor
Agreement substantially in the form of Exhibit F for and on
behalf of each of the Banks.
SECTION 9.02. Exculpation. Neither the Administrative
Agent nor the Documentation Agent, nor any of their directors,
officers, employees or agents shall be liable as such for any
action taken or omitted by any of them hereunder except for its
or his own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein,
or be required to ascertain or to make any inquiry concerning the
performance or observance by the Borrower or the Guarantors of
any of the terms, conditions, covenants or agreements of this
Agreement. Neither the Administrative Agent nor the
Documentation Agent shall be responsible to the Banks for the due
execution, genuineness, validity, enforceability or effectiveness
of this Agreement or any other Fundamental Document, the Notes or
any other instrument to which reference is made herein. The
Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof until written notice of
transfer shall have been filed with it. The Administrative Agent
shall promptly notify the Borrower of any such notice received by
such Administrative Agent. The Administrative Agent shall in all
cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Banks, and,
except as otherwise specifically provided herein, such
instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Banks. The Administrative
Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper
person or persons. Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure or delay
in performance or breach by any Bank of any of its obligations
hereunder or to any Bank on account of the failure or delay in
performance or breach by any other Bank, or the Borrower, of any
of their respective obligations hereunder or in connection
herewith.
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SECTION 9.03. Consultation with Counsel. The
Administrative Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to advice of
legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of
such counsel.
SECTION 9.04. The Administrative Agent, Individually.
With respect to the Loans made by it and the Notes issued to it,
the Administrative Agent in its individual capacity and not as
Administrative Agent shall have the same rights and powers
hereunder and under any other agreement as any other Bank and may
exercise the same as though it were not the Administrative Agent,
and the Administrative Agent and its affiliates may accept
deposits from, lend money to and generally engage in any kind of
business with the Borrower or any of the Subsidiaries or other
Affiliate of the Borrower or any such Subsidiary as if it were
not the Administrative Agent.
SECTION 9.05. Reimbursement and Indemnification. Each
Bank agrees (i) to reimburse the Administrative Agent in the
amount of such Bank's proportionate share of any expenses
incurred for the benefit of the Banks, including counsel fees and
compensation of agents and employees paid for services rendered
on behalf of the Banks, not reimbursed by the Borrower, and (ii)
to indemnify and hold harmless the Administrative Agent and any
of its directors, officers, employees or agents, on demand, in
the amount of its proportionate share, from and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it or any of them in any way relating to
or arising out of this Agreement, or under the other Fundamental
Documents or any action taken or omitted by it or any of them
under this Agreement or under the other Fundamental Documents, to
the extent not reimbursed by the Borrower; provided, however,
that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent or
any of its directors, officers, employees or agents.
SECTION 9.06. Resignation. Subject to the appointment
and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by
notifying the Banks and the Borrower. Upon any such resignation,
and with the consent of the Borrower (which shall be deemed to be
granted if an Event of Default shall have occurred and be
continuing), the Required Banks shall have the right to appoint a
successor Administrative Agent which is a Bank hereunder. If no
successor Administrative Agent shall have been so appointed by
such Banks and shall have accepted such appointment within 30
days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent
having a combined capital and surplus of at least $300,000,000
and which is a Bank hereunder. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
bank, such successor shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations
hereunder and under any other documents executed in connection
herewith. After the Administrative Agent's resignation
hereunder, the provisions of this Article IX shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Administrative Agent.
At all times, any Administrative Agent hereunder shall be a Bank
hereunder.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. Notices and other
communications provided for herein shall be in writing and shall
be delivered or mailed (or in the case of telegraphic
communication, if by telegram, delivered to the telegraph company
and, if by telex, telecopy, graphic scanning or other telegraphic
or electronic communications equipment, delivered by such
equipment) addressed at its address or number set forth on
Schedule 2.01. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement
shall be effective when received.
SECTION 10.02. No Waivers; Amendments. No failure or
delay of the Administrative Agent or any Bank in exercising any
power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and
remedies of the Administrative Agent and the Banks hereunder are
cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any such Bank would otherwise have. No
notice or demand on the Borrower shall entitle the Borrower to
any other or further notice or demand in similar or other
circumstances; provided that the foregoing shall not limit the
right of the Borrower to any notice expressly provided for
herein. No modification, amendment or waiver of any provision of
this Agreement or any of the Notes nor consent to any departure
of the Borrower therefrom shall in any event be effective unless
the same shall be in writing and signed by the Required Banks and
then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Any such
modification, amendment, waiver or consent, so given, shall be
effective to bind all the Banks; provided that, no such
modification, amendment, waiver or consent may be made which will
(i) reduce or increase the amount or alter the term of any
Commitment of any Bank hereunder without the written consent of
such Bank; (ii) extend the time for payment of principal of or
interest on any Note, or reduce the principal amount or decrease
the rate of interest on any Loan or change the method of
calculation provided for herein for determining the rate of
interest on any Note, or vary the time for payment or reduce the
amount of fees payable to any Bank hereunder, or release any
Guarantor or any collateral hereunder, or change the definition
of Required Banks set forth in Article I, or amend this
Section 10.02 or Section 2.18, without the written consent of all
the Banks; or (iii) give any Note preference over any other Note
in payment of principal or interest.
SECTION 10.03. Applicable Law; Submission to
Jurisdiction; Service of Process; Waiver of Jury Trial.
(a) This Agreement and the Notes shall be construed in accordance
with and governed by the laws of the State of New York applicable
to agreements made and to be performed wholly in the State of New
York.
(b) Each of the Borrower and each Guarantor hereby
irrevocably submits itself to the jurisdiction of the Supreme
Court of the State of New York, New York County, and to the
jurisdiction of the United States District Court for the Southern
District of New York, for the purpose of any suit, action or
other proceeding arising out of or relating to this Agreement,
any other Fundamental Document or any related document or any of
the transactions contemplated hereby or thereby, and hereby
waives, and agrees not to
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assert, by way of motion, as a defense, or otherwise, in any
suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of the above-named courts for any
reason whatsoever, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper or that this Agreement or any
other Fundamental Documents or, to the full extent permitted by
applicable law, any subject matter of any thereof may not be
enforced in or by such courts. Neither this paragraph (b) nor
paragraph (c) below shall restrict the Administrative Agent or
any Bank from bringing suit or instituting other judicial
proceedings against the Borrower or any Guarantor or any of their
assets in any court or jurisdiction not referred to herein or
therein.
(c) Each party to this Agreement irrevocably consents
to service of process in the manner provided for notice in
Section 10.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.
(d) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT, ANY OTHER FUNDAMENTAL DOCUMENT
AND ANY OF THE OTHER DOCUMENTS OR TRANSACTIONS CONTEMPLATED
HEREIN OR THEREIN.
(e) Except as prohibited by law, each party hereto
hereby waives any right it may have to claim or recover in any
litigation referred to in paragraph (d) of this Section 10.03 any
special, exemplary, punitive, indirect (including loss of
profits) or consequential damages or any damages other than, or
in addition to, actual damages; provided that if a party hereto
shall obtain a final, nonappealable judgment that another party
shall have intentionally and knowingly breached its obligations
under this Agreement with an intention of injuring the claimant
party, the claimant party may then seek consequential damages
from such breaching party for its losses suffered as a result of
such intentional breach.
(f) Each party hereto (i) certifies that neither any
representative, agent nor attorney of any Bank has represented,
expressly or otherwise, that such Bank would not, in the event of
litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that it has been induced to enter into this
Agreement by, among other things, the mutual waivers and
certifications herein.
SECTION 10.04. Expenses; Documentary Taxes. The
Borrower agrees to pay all reasonable out-of-pocket expenses (i)
incurred by the Administrative Agent in connection with the
preparation, execution and delivery, waiver or modification and
administration of this Agreement, any other Fundamental Document
or any related documents or in connection with the performance of
due diligence by the Administrative Agent or the syndication of
the Loans (whether or not the transactions hereby contemplated
shall be consummated), and (ii) incurred by the Administrative
Agent in connection with the making of the Loans hereunder, or
incurred by the Administrative Agent or the Banks in connection
with the enforcement of this Agreement or the Loans made or the
Notes issued hereunder or any other Fundamental Documents and
with respect to any action which may be instituted by any person
against the Banks or the Administrative Agent in respect of the
foregoing (but not with respect to any act of gross negligence or
willful misconduct of the Administrative Agent or any Bank), or
as a result of any transaction, action or nonaction arising from
the foregoing, including, but not
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limited to, the fees and disbursements of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, PC,
counsel to the Administrative Agent. The Borrower agrees that it
shall indemnify the Banks and the Administrative Agent from and
hold them harmless against any documentary taxes, assessments or
charges made by any Governmental Authority by reason of the
execution and delivery of this Agreement, the Fundamental
Documents or any of the Notes. The obligations of the Borrower
under this Section 10.04 shall survive the termination of this
Agreement and the Commitments and/or the payment of the Notes.
SECTION 10.05. Indemnity. Further, by the execution
hereof, the Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Banks, and each of their respective
affiliates and their respective directors, officers, employees
and agents (each an "Indemnified Party") from and against any and
all expenses, including reasonable fees and disbursements of
counsel, losses, claims, damages and liabilities arising out of
any claim, litigation, investigation or proceeding (whether or
not the Administrative Agent or any Bank is a party thereto)
relating to the financing contemplated hereby and transactions
related thereto, except that Borrower shall not be required by
this Section 10.05 to indemnify or hold harmless an Indemnified
Party to the extent that the matters for which such Indemnified
Party claims indemnification under this Section 10.05 are the
result of its gross negligence or willful misconduct. The
obligations of the Borrower under this Section 10.05 shall
survive the termination of this Agreement and the Commitments
and/or payments of the Loans.
SECTION 10.06. Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the Borrower,
the Guarantors, the Administrative Agent, the Documentation Agent
and the Banks and their respective successors and assigns.
Neither the Borrower nor the Guarantors may assign or transfer
any of their rights or obligations hereunder without the written
consent of the Required Banks.
SECTION 10.07. Survival of Agreements, Representations
and Warranties, etc. All warranties, representations and
covenants made by the Borrower or the Guarantors herein or in any
certificate or other instrument delivered by it or on its behalf
in connection with this Agreement shall be considered to have
been relied upon by the Banks and shall survive the making of the
Loans herein contemplated and the issuance and delivery to the
Banks of the Notes regardless of any investigation made by the
Banks or on their behalf and shall continue in full force and
effect so long as any amount due or to become due hereunder is
outstanding and unpaid and so long as the Commitments have not
been terminated. All statements in any such certificate or other
instrument shall constitute representations and warranties by the
Borrower hereunder.
SECTION 10.08. Severability. In case any one or more
of the provisions contained in this Agreement or the Notes should
be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good faith
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 10.09. Cover Page and Section Headings. The
cover page and section headings used herein are for convenience
of reference only, are not part of this Agreement and are not to
affect the construction of or be taken into consideration in
interpreting this Agreement.
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SECTION 10.10. Counterparts, Integration, Telecopy
Signatures. This Agreement may be signed in any number of
counterparts with the effect as if the signatures thereto were
upon the same instrument. This Agreement shall become effective
when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall have been received
by the Administrative Agent. This Agreement, the other
Fundamental Documents, and all other documents, instruments, and
agreements referred to herein or therein constitute the entire
agreement of the parties hereto relating to the subject matter
hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter
hereof. Delivery of an executed counterpart of a signature page
of this Agreement or of any other Fundamental Document by
telecopy transmission shall constitute effective and binding
execution and delivery of this Agreement or such other
Fundamental Document, as the case may be.
SECTION 10.11. Confidentiality. Each Bank agrees
(which agreement shall survive the termination of this Agreement)
that financial information, information from the Borrower's books
and records, information concerning the Borrower's trade secrets
and patents and any other information received from the Borrower
hereunder and designated in writing as confidential shall be
treated as confidential by such Bank, and each Bank agrees to use
its best efforts to ensure that such information is not
published, disclosed or otherwise divulged to anyone other than
employees or officers of such Bank and its counsel and agents
with a need to know such information and who have been informed
of the confidentiality hereunder (as reasonably determined by
such Bank); provided that it is understood that the foregoing
shall not apply to:
(i) disclosure made with the prior written
authorization of the Borrower;
(ii) disclosure of information (other than that
received from the Borrower prior to or under this Agreement)
already known by, or in the possession of such Bank without
restrictions on the disclosure thereof at the time such
information is supplied to such Bank by the Borrower
hereunder;
(iii) disclosure of information which is required by
applicable law or to a governmental agency having
supervisory authority over any party hereto;
(iv) disclosure of information in connection with any
suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with the
transactions contemplated hereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Bank hereunder;
provided that such bank (or other financial institution)
agrees to maintain any such information to be received in
accordance with the provisions of this Section 10.11;
(vi) disclosure by any party hereto to any other party
hereto or their counsel or agents with a need to know such
information (as reasonably determined by such party);
(vii) disclosure by any party hereto to any entity, or
to any subsidiary of such an entity, which owns, directly or
indirectly, more than 50% of the voting stock of such party,
or to any subsidiary of such an entity; or
(viii) disclosure of information that prior to such
disclosure has been public knowledge through no violation of
this Agreement.
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SECTION 10.12. Conversion of Currencies. (a) If, for
the purpose of obtaining judgment in any court, it is
necessary to convert a sum owing hereunder in one currency
into another currency, each party hereto agrees, to the
fullest extent that it may effectively do so, that the rate
of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the
first currency could be purchased with such other currency
on the Business Day immediately preceding the day on which
final judgment is given.
(b) The obligations of each party hereto in respect of
any sum due to any other party hereto or any holder of the
obligations owing hereunder (the "Applicable Creditor") shall,
notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to
be due hereunder (the "Agreement Currency"), be discharged only
to the extent that, on the Business Day following receipt by the
Applicable Creditor of any sum adjudged to be so due in the
Judgment Currency, the Applicable Creditor may in accordance with
normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount
of the Agreement Currency so purchased is less than the sum
originally due to the Applicable Creditor in the Agreement
Currency, such party agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the parties
contained in this Section 10.12 shall survive the termination of
this Agreement and the payment of all other amounts owing
hereunder.
SECTION 10.13. European Monetary Union. (a) If, as a
result of the implementation of European monetary union, (i) any
currency ceases to be lawful currency of the nation issuing the
same and is replaced by a European common currency, or (ii) any
currency and a European common currency are at the same time
recognized by the central bank or comparable authority of the
nation issuing such currency as lawful currency of such nation
and the Administrative Agent or the Required Banks shall so
request in a notice delivered to the Borrower, then any amount
payable hereunder by any party hereto in such currency shall
instead be payable in the European common currency and the amount
so payable shall be determined by translating the amount payable
in such currency to such European common currency at the exchange
rate recognized by the European Central Bank for the purpose of
implementing European monetary union. Prior to the occurrence of
the event or events described in clause (i) or (ii) of the
preceding sentence, each amount payable hereunder in any currency
will continue to be payable only in that currency. The Borrower
agrees, at the request of the Required Banks, at the time of or
at any time following the implementation of European monetary
union, to enter into an agreement amending this Agreement in such
manner as the Required Banks shall reasonably request in order to
reflect the implementation of such monetary union and to place
the parties hereto in the position they would have been in had
such monetary union not been implemented.
SECTION 10.14. Co-Documentation and Co-Syndication
Agents. The Co-Syndication Agents and the Co-Documentation
Agents do not assume any responsibility or obligation under this
Agreement or any of the other Fundamental Documents or any duties
as agents for the Banks. The titles "Co-Syndication Agent" and
"Co-Documentation Agent" imply no fiduciary or similar
responsibility on the part of either of the Co-Syndication Agents
or either of the Co-Documentation Agents to any Person and the
use of such titles does not impose upon the Co-Syndication Agents
or the Co-Documentation Agents any duties or obligations under
this Agreement or any of the other Fundamental Documents.
[THIS AGREEMENT CONTINUES ON THE NEXT PAGE]
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[SIGNATURE PAGE 1 OF __
TO FACILITY A 364-DAY COMPETITIVE ADVANCE, REVOLVING CREDIT AND
GUARANTY AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
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