Exhibit 4(f)
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$2,000,000,000
CREDIT AGREEMENT
Dated as of May 30, 1997,
among
HE HOLDINGS, INC.
as Borrower,
▇▇▇▇▇▇ AIRCRAFT COMPANY,
as Guarantor,
THE LENDERS NAMED HEREIN,
BANCAMERICA SECURITIES, INC. and
CHASE SECURITIES, INC.,
as Arrangers,
BANCAMERICA SECURITIES, INC.,
as Syndication Agent,
CITICORP USA, INC. and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agents,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent,
364-DAY COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY
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TABLE OF CONTENTS
Page
----
I. DEFINITIONS........................................................... 1
SECTION 1.01. Defined Terms.......................................... 1
SECTION 1.02. Terms Generally........................................ 13
II. THE CREDITS........................................................... 14
SECTION 2.01. Commitments............................................ 14
SECTION 2.02. Loans.................................................. 14
SECTION 2.03. Competitive Bid Procedure.............................. 15
SECTION 2.04. Borrowing Procedure.................................... 17
SECTION 2.05. Evidence of Debt; Repayment of Loans................... 17
SECTION 2.06. Fees................................................... 17
SECTION 2.07. Interest on Loans...................................... 18
SECTION 2.08. Default Interest....................................... 18
SECTION 2.09. Alternate Rate of Interest............................. 18
SECTION 2.10. Termination and Reduction of Commitments............... 19
SECTION 2.11. Conversion and Continuation of Revolving Credit
Borrowings....................................... 19
SECTION 2.12. Prepayment............................................. 20
SECTION 2.13. Required Commitment Reductions and Prepayments......... 21
SECTION 2.14. Reserve Requirements; Change in Circumstances.......... 21
SECTION 2.15. Change in Legality..................................... 22
SECTION 2.16. Indemnity.............................................. 23
SECTION 2.17. Pro Rata Treatment..................................... 23
SECTION 2.18. Sharing of Setoffs..................................... 24
SECTION 2.19. Payments............................................... 24
SECTION 2.20. Taxes.................................................. 24
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate................................. 26
III. REPRESENTATIONS AND WARRANTIES........................................ 27
SECTION 3.01. Organization; Powers................................... 27
SECTION 3.02. Authorization.......................................... 27
SECTION 3.03. Enforceability......................................... 28
SECTION 3.04. Governmental Approvals................................. 28
SECTION 3.05. Financial Statements................................... 28
SECTION 3.06. No Material Adverse Change............................. 28
SECTION 3.07. Litigation; Compliance with Laws....................... 28
SECTION 3.08. Federal Reserve Regulations............................ 28
SECTION 3.09. Investment Company Act; Public Utility Holding Company
Act.............................................. 28
SECTION 3.10. Tax Returns............................................ 29
SECTION 3.11. No Material Misstatements.............................. 29
SECTION 3.12. Employee Benefit Plans................................. 29
IV. CONDITIONS OF LENDING................................................. 29
SECTION 4.01. All Borrowings......................................... 29
SECTION 4.02. First Borrowing........................................ 30
V. AFFIRMATIVE COVENANTS................................................. 31
SECTION 5.01. Existence; Businesses and Properties................... 32
SECTION 5.02. Insurance.............................................. 32
SECTION 5.03. Taxes.................................................. 32
2
SECTION 5.04. Financial Statements, Reports, etc................................ 32
SECTION 5.05. Litigation and Other Notices...................................... 33
SECTION 5.06. Employee Benefits................................................. 33
SECTION 5.07. Maintaining Records; Access to Properties and Inspections......... 34
SECTION 5.08. Use of Proceeds................................................... 34
VI. NEGATIVE COVENANTS............................................................... 34
SECTION 6.01. Liens............................................................. 35
SECTION 6.02. Sale and Lease-Back Transactions.................................. 35
SECTION 6.03. Mergers, Consolidations and Sales of Assets....................... 35
SECTION 6.04. Subsidiary Indebtedness........................................... 36
SECTION 6.05. Debt to Capitalization............................................ 36
SECTION 6.06. Amendment to Agreements........................................... 37
VII. EVENTS OF DEFAULT................................................................ 37
VIII. THE ADMINISTRATIVE AGENT......................................................... 39
IX. GUARANTEE........................................................................ 40
X. MISCELLANEOUS.................................................................... 41
SECTION 10.01. Notices.......................................................... 41
SECTION 10.02. Survival of Agreement............................................ 42
SECTION 10.03. Binding Effect................................................... 42
SECTION 10.04. Successors and Assigns........................................... 42
SECTION 10.05. Expenses; Indemnity.............................................. 45
SECTION 10.06. Right of Setoff.................................................. 46
SECTION 10.07. Applicable Law................................................... 46
SECTION 10.08. Waivers; Amendment............................................... 46
SECTION 10.09. Interest Rate Limitation......................................... 46
SECTION 10.10. Entire Agreement................................................. 47
SECTION 10.11. Waiver of Jury Trial............................................. 47
SECTION 10.12. Severability..................................................... 47
SECTION 10.13. Counterparts..................................................... 47
SECTION 10.14. Headings......................................................... 47
SECTION 10.15. Jurisdiction; Consent to Service of Process...................... 47
SECTION 10.16. Confidentiality.................................................. 48
EXHIBITS
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Exhibit A Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D-1 Form of Competitive Bid Request
Exhibit D-2 Form of Notice of Competitive Bid Request
Exhibit D-3 Form of Competitive Bid
Exhibit D-4 Form of Competitive Bid Accept/Reject Letter
Exhibit E Form of Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Exhibit F Form of Opinion of Special Counsel for the Borrower
Exhibit G Form of Tax Opinion
Exhibit H Form of Delco Notes
SCHEDULES
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Schedule 1.01 Restricted Subsidiaries
Schedule 2.01 Lenders and Commitments
Schedule 3.01 Significant Subsidiaries
Schedule 3.01 Financial Statements/Material Liabilities
Schedule 3.07 Litigation
3
Schedule 6.01 Existing Liens
Schedule 6.04 Existing Subsidiary Indebtedness
CREDIT AGREEMENT dated as of May 30, 1997, among HE
HOLDINGS, INC., a Delaware corporation (the "Borrower"),
▇▇▇▇▇▇ AIRCRAFT COMPANY, a Delaware corporation, as Guarantor
(the "Guarantor"), the Lenders (as defined in Article I),
BANCAMERICA SECURITIES, INC. and CHASE SECURITIES, INC., as
arrangers (in such capacity, the "Arrangers"), BANCAMERICA
SECURITIES, INC., as syndication agent (in such capacity, the
"Syndication Agent"), CITICORP USA, INC. and ▇▇▇▇▇▇ GUARANTY
TRUST COMPANY OF NEW YORK, as documentation agents (in such
capacity, each a "Documentation Agent" and, collectively, the
"Documentation Agents"), and THE CHASE MANHATTAN BANK, a New
York banking corporation, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders.
The Borrower has requested the Lenders, and the Lenders have agreed, to
extend credit in the form of Revolving Loans at any time and from time to time
prior to the Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $2,000,000,000. The Borrower also has requested the
Lenders to provide a procedure pursuant to which the Borrower may invite the
Lenders to bid on an uncommitted basis on short-term borrowings by the Borrower.
Pursuant to an agreement and plan of merger dated as of January 16, 1997 (the
"Merger Agreement"), between the Borrower and Raytheon Company ("Raytheon"), and
subject to the conditions therein, the Borrower will combine its defense
business with the business of Raytheon (the "Raytheon Merger"). Prior to the
Raytheon Merger, the Guarantor will merge with and into the Borrower (the "HAC
Merger"), with the Borrower being the surviving corporation of such merger.
Immediately following the Raytheon Merger, the Borrower, as the surviving
corporation of such merger, will change its name to Raytheon Company. The
proceeds of the Loans are to be used by the Borrower to contribute cash to
▇▇▇▇▇▇ Network Systems, Inc. ("HNS"), to pay fees and expenses in connection
with the Raytheon Merger, and to repay intercompany loans prior to the spin-off
of HNS to General Motors Corporation ("GM"), including payment of loans from
Delco Electronics Corporation to the Borrower. Following the Raytheon Merger,
the Facilities may also be used to provide working capital and for other general
corporate purposes of the Borrower, including commercial paper backup.
The Lenders are willing to extend such credit to the Borrower on the terms
and subject to the conditions set forth herein. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at the Alternate Base Rate
in accordance with the provisions of Article II.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Agents" shall mean the Administrative Agent, the Syndication Agent and the
Documentation Agents.
"Agents' Fees" shall have the meaning assigned to such term in Section
2.06(b).
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
2
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. 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 Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms hereof, the Alternate Base
Rate shall be determined without regard to clause (b) or (c), or both, of the
preceding sentence, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean, with respect to any Eurodollar Loan
(other than any Eurodollar Competitive Loan), or with respect to the Facility
Fees, as the case may be:
(a) for any day prior to the consummation of the Raytheon Merger, the
applicable percentage set forth below under the caption "Eurodollar Spread" or
"Fee Percentage", as the case may be, based upon the ratio of Total Debt to
Total Capitalization:
Eurodollar Fee
Ratio Spread Percentage
----- ---------- ----------
Category 1
----------
Less than or equal to 25% .155% .045%
Category 2
----------
Greater than 25% but less than
or equal to 35% .195% .055%
Category 3
----------
Greater than 35% but less than
or equal to 45% .250% .100%
Category 4
----------
Greater than 45% but less than
or equal to 55% .325% .125%
Category 5
----------
Greater than 55% .450% .150%
For purposes of this clause (a), (i) the Eurodollar Spread will be
increased by 0.05% at all times that the aggregate amounts outstanding hereunder
and under the 5-year Agreement exceed 66 2/3% of the aggregate commitments
(whether used or unused) hereunder and under the 5-year Agreement, (ii) the
ratio of Total Debt to Total Capitalization on any day shall be determined by
reference to the Ratio Certificate most recently delivered pursuant to Section
4.02(d)(ii), 2.04 or 5.04(c), as the case may be and (iii) if the Ratio
Certificate has not been delivered in accordance with this Agreement, the ratio
of Total Debt to Total Capitalization will be deemed to be in Category 5. Each
change in the Applicable Percentage resulting from any change in the ratio of
Total Debt to Total Capitalization shall be effective on and after the date of
delivery of a Ratio Certificate indicating such change; and
(b) with respect to the day of, and any day after, the consummation of the
Raytheon Merger, the applicable percentage set forth below under the caption
"Eurodollar Spread" or "Fee Percentage", as the case may be, based upon the
ratings by S&P and ▇▇▇▇▇'▇, respectively, applicable on such date to the Index
Debt:
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Eurodollar Fee
Spread Percentage
------ ----------
Category 1
----------
AA- or higher by S&P .135% .045%
Aa3 or higher by ▇▇▇▇▇'▇
Category 2
----------
A+ or A by S&P .175% .050%
A1 or A2 by ▇▇▇▇▇'▇
Category 3
----------
A- by S&P .195% .055%
A3 by ▇▇▇▇▇'▇
Category 4
----------
BBB+ by S&P .230% .070%
Baa1 by ▇▇▇▇▇'▇
Category 5
----------
.250% .100%
BBB by S&P
Baa2 by ▇▇▇▇▇'▇
Category 6
----------
BBB- by S&P .325% .125%
Baa3 by ▇▇▇▇▇'▇
Category 7
----------
Less than BBB- by S&P .400% .150%
Less than Baa3 by ▇▇▇▇▇'▇
For purposes of this clause (b), (i) if either ▇▇▇▇▇'▇ or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this paragraph), then such
rating agency shall be deemed to have established a rating in Category 7; (ii)
if the ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P
for the Index Debt shall fall within different Categories, the Applicable
Percentage shall be based on the higher of the two ratings unless the ratings
differ by more than one category, in which case the governing rating shall be
the rating next below the higher of the two; (iii) until the aggregate
commitments under this Agreement, the 5-year Agreement and the Raytheon Credit
Agreements are reduced below $8,000,000,000, the Eurodollar Spread will be
increased by 0.05% at all times that the aggregate amounts outstanding hereunder
and under the 5-year Agreement exceed 66 2/3% of the aggregate commitments
(whether used or unused) hereunder and under the 5-year Agreement; and (iv) if
the ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P
for the Index Debt shall be changed (other than as a result of a change in the
rating system of ▇▇▇▇▇'▇ or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Applicable Percentage shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of ▇▇▇▇▇'▇ or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed rating
system or the non-availability of ratings from such rating agency and, pending
the effectiveness of any such amendment,
4
the Applicable Percentage shall be determined by reference to the rating most
recently in effect prior to such change or cessation.
"Asset Sale" shall mean the sale, assignment, transfer or other disposition
by the Borrower or any of its Restricted Subsidiaries to any person other than
the Borrower or any of its wholly owned Restricted Subsidiaries of any capital
stock or assets owned by such person other than inventory, obsolete or worn out
assets or accounts receivable, in each case disposed of in the ordinary course
of business; provided, however, that any asset sale or series of related asset
sales described above having a value not in excess of $25,000,000 shall not be
deemed an "Asset Sale" for purposes of this Agreement; and provided further that
the consummation of the HAC Merger and the Raytheon Merger and the other
transactions contemplated by the Separation Agreement shall not be deemed an
"Asset Sale" for purposes of this Agreement.
"Arrangers" shall have the meaning assigned to such term in the preamble.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Base CD Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment Rate. The
term "Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other domestic banking authority to which the
Administrative Agent or any Lender (including any branch, Affiliate, or other
fronting office making or holding a Loan) is subject with respect to the Base CD
Rate, for new negotiable nonpersonal time deposits in Dollars of over $100,000
with maturities approximately equal to three months. Statutory Reserves shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage. The term "Assessment Rate" shall mean for any date the
annual rate (rounded upwards, if necessary, to the next 1/100 of 1%) most
recently estimated by the Administrative Agent as the then current net annual
assessment rate that will be employed in determining amounts payable by the
Administrative Agent to the Federal Deposit Insurance Corporation (or any
successor) for insurance by such Corporation (or such successor) of time
deposits made in Dollars at the Administrative Agent's domestic offices.
"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 Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03) on a single
date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.04 and substantially in the form of Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
provided, however, that, when used in connection with a Eurodollar Loan, the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in Dollar deposits in the London interbank market.
A "Change in Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934
as in effect on the date hereof) other than, at any time prior to the Raytheon
Merger, GM or its subsidiaries shall own directly or indirectly, beneficially or
of record, shares representing more than 50% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Borrower,
(b) a majority of the seats (other than vacant seats) on the board of directors
of the Borrower shall at any time have been occupied by persons who were neither
(i) nominated by the board of directors of the Borrower nor (ii) appointed by
directors so nominated or (c) the Borrower shall cease to own 100% of HAC prior
to the consummation of the HAC Merger; provided, however, that (i) the
consummation of the Raytheon Merger and the transactions contemplated by the
Merger Agreement shall not constitute a Change in Control and (ii) the
consummation of the HAC Merger and the transactions contemplated thereby shall
not constitute a Change in Control.
5
"Closing Date" shall mean May 30, 1997.
"Closing Date Final Amount" shall have the meaning assigned to such term in
the Separation Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender to make Revolving Loans hereunder as set forth on Schedule 2.01, or
in the Assignment and Acceptance pursuant to which such Lender assumed its
Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.10 or pursuant to Section 2.17, and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by
the Borrower pursuant to Section 2.03(d) in the form of Exhibit D-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Competitive
Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Section
2.03 in the form of Exhibit D-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the Borrower pursuant
to the bidding procedure described in Section 2.03. Each Competitive Loan shall
be a Eurodollar Competitive Loan or a Fixed Rate Loan.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated April 1997.
"Consolidated Net Tangible Assets" shall mean, as at any date of
determination, the total amount of assets of the Borrower and the Restricted
Subsidiaries (less applicable depreciation, amortization and other valuation
reserves) at such date, after deducting therefrom (a) all current liabilities of
the Borrower and the Restricted Subsidiaries at such date and (b) all goodwill,
trade names, trademarks, patents, unamortized debt issuance fees and expenses
and other like intangibles at such date.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Debt Issuance" shall mean the public or private issuance or series of
related issuances by the Borrower or any Restricted Subsidiary of Indebtedness
for money borrowed in an aggregate principal amount in excess of $50,000,000
with a maturity greater than 270 days; provided, however, that none of the
following shall be considered a "Debt Issuance" for purposes of this Agreement:
(a) Indebtedness incurred under this Agreement, the 5-year Agreement or the
Raytheon Credit Agreements, (b) Indebtedness incurred under Section 6.04 (other
than Section 6.04(h)) of each of this Agreement, the 5-year Agreement or the
Raytheon Credit Agreements, (c) Subordinated Intercompany Indebtedness and (d)
Indebtedness of the Borrower of the type described in Section 6.04(c).
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Defense Business" shall have the meaning assigned to such term in the
Separation Agreement.
6
"Delco Notes" shall mean the subordinated promissory notes of the Borrower,
in the form attached as Exhibit H.
"Dollars" or "$" shall mean lawful money of the United States of America.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan; (b)
the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (e) the incurrence of any liability under Title IV of ERISA
with respect to the termination of any Plan or the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; (f) the receipt by the Borrower or any ERISA Affiliate from
the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g)
the receipt by the Borrower or any ERISA Affiliate of any notice that Withdrawal
Liability is being imposed or a determination that a Multiemployer Plan is, or
is expected to be, insolvent or in reorganization, within the meaning of Title
IV of ERISA; and (h) the occurrence of a non-exempt "prohibited transaction"
with respect to which the Borrower or any of its Subsidiaries is a "disqualified
person" (within the meaning of Section 4975) of the Code, or with respect to
which the Borrower or any such Subsidiary could otherwise be liable.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Borrowing" shall mean a Borrowing comprised of
Eurodollar Competitive Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or Eurodollar
Competitive Loan.
"Eurodollar Revolving Credit Borrowing" shall mean a Borrowing comprised of
Eurodollar Revolving Loans.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that 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.
"Fee Letter" shall mean the Fee Letter dated April 3, 1997, between the
Borrower, the Administrative Agent, the Syndication Agent and Bank of America
National Trust and Savings Association.
7
"Fees" shall mean the Facility Fees and the Agents' Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such corporation and, with respect to the Borrower following the
Raytheon Merger, shall also mean the Vice President - Project and International
Finance.
"5-year Agreement" shall mean the 5-year Credit Agreement dated as of the
date hereof among the Borrower, the Guarantor, the lenders party thereto and the
Agents.
"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 Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"GM" shall have the meaning assigned to such term in the preamble.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other liability of any other person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligations of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of )such Indebtedness or
liability or to purchase (or to advance or supply funds for the purchase of) any
security for the payment of such Indebtedness or liability, (b) to purchase
property, securities or services for the purpose of assuring the owner of such
Indebtedness or liability of the payment of such Indebtedness or liability or
(c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or liability.
"Guarantor" shall have the meaning assigned to such term in the preamble
"HAC Merger" shall have the meaning assigned to such term in the preamble.
"▇▇▇▇▇▇ Distribution Agreement" shall have the meaning assigned to such
term in the Merger Agreement.
"HNS" shall have the meaning assigned to such term in the preamble.
"Indebtedness" of any person shall mean, as at any date of determination,
all indebtedness (including capitalized lease obligations) of such person and
its consolidated subsidiaries at such date that would be required to be included
as a liability on a consolidated balance sheet (excluding the footnotes thereto)
of such person prepared in accordance with GAAP applied on a basis consistent
with the application used in the financial statements referred to in Section
3.05.
"Index Debt" shall mean the senior, unsecured, non-credit enhanced, long-
term indebtedness for borrowed money of the Borrower.
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months' duration, each day that would have been an Interest Payment Date
had successive Interest Periods of three months' duration been applicable to
such Borrowing, and, in addition, except with respect to any ABR Loan, the date
of any prepayment of such Loan or conversion of such Loan to a Loan of a
different Type.
"Interest Period" shall mean (a) as to any Eurodollar 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
8
thereafter, as the Borrower may elect, (b) as to any ABR 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 earlier of (i) the next succeeding March 31, June 30, September 30
or December 31 and (ii) the Maturity Date 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 was extended, which shall not be earlier than
seven 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 a Eurodollar
Borrowing 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.
"Lenders" shall mean (a) the financial institutions listed on Schedule 2.01
(other than any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any financial institution that
has become a party hereto pursuant to an Assignment and Acceptance.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing, the rate
(rounded upwards, if necessary, to the next 1/100 of 1%) at which Dollar
deposits approximately equal in principal amount to (i) in the case of a
Revolving Credit Borrowing, the Administrative Agent's portion of such
Eurodollar Borrowing and (ii) 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.
"Lien" shall mean, with respect to any asset of any person, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities that
constitute assets of such person, any purchase option, call or similar right of
a third party with respect to such securities.
"Loans" shall mean the Revolving Loans and the Competitive Loans.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean a materially adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Borrower and the Restricted Subsidiaries taken as a whole.
"Maturity Date" shall mean May 29, 1998.
"Merger Agreement" shall have the meaning assigned to such term in the
preamble.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
gross cash proceeds (including, without limitation, cash proceeds, whenever
received, of any non-cash consideration) of such Asset Sale less the sum of (i)
the reasonable costs associated therewith, including taxes (as estimated by the
Borrower or any of its Subsidiaries, as the case may be, in good faith),
brokers' and advisors' fees and commissions, (ii) payments of the outstanding
principal amount of, premium or
9
penalty, if any, and interest on any Indebtedness required to be, and which in
fact is, paid or prepaid under the terms thereof as a result of such Asset Sale
and (iii) appropriate amounts as a reserve, in accordance with GAAP, against any
liabilities directly associated with the capital stock or assets sold and which
liabilities are retained by the Borrower or any of its Subsidiaries after such
Asset Sale (provided that such amounts shall constitute Net Cash Proceeds as and
when they are released from such reserve) and (b) with respect to any Debt
Issuance, cash proceeds net of underwriting commissions or placement fees and
expenses directly incurred in connection therewith less the amount thereof used
substantially concurrently with the receipt thereof to repay or prepay short-
term Indebtedness of the Borrower or its Restricted Subsidiaries or the current
maturities of long-term Indebtedness of the Borrower or its Restricted
Subsidiaries. The Net Cash Proceeds of any Asset Sale completed prior to the
Raytheon Merger shall only be Net Cash Proceeds for purposes of Section 2.13(a)
to the extent they are identifiable as such.
"Obligations" shall mean (a) the due and punctual payment of (i) the
principal of and interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) on the Loans, when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, and (ii) all other monetary obligations, including
Fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) of
the Borrower to the Lenders under this Agreement and (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Borrower under or pursuant to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Permitted Receivables Program" shall mean any receivables securitization
program pursuant to which the Borrower or any of the Subsidiaries sells accounts
receivable to any non-Affiliate in a "true sale" transaction; provided, however,
that any related indebtedness incurred to finance the purchase of such accounts
receivable is not includible on the balance sheet of the Borrower or any
Subsidiary in accordance with GAAP and applicable regulations of the Securities
and Exchange Commission.
"person" shall mean any natural person, corporation, limited liability
company, business trust, joint venture, association, company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as being effective.
"Ratio Certificate" shall mean a certificate, signed on behalf of the
Borrower by a Financial Officer of the Borrower, delivered to the Administrative
Agent on the Closing Date, at the time of each Borrowing Request occurring prior
to the Raytheon Merger and as may be required by Section 5.04(c), and
calculating, in detail reasonably satisfactory to the Administrative Agent, the
ratio of Total Debt to Total Capitalization on the Closing Date or on the date
of (and after giving pro forma effect to) the related Borrowing or on the last
day of any fiscal quarter, as the case may be.
"Raytheon" shall have the meaning assigned to such term in the preamble.
"Raytheon Credit Agreements" shall mean the 364-day and five-year credit
agreements entered into by, among others, Raytheon, as borrower, the lenders
party thereto, BancAmerica Securities, Inc., as syndication agent, and The Chase
Manhattan Bank, as administrative agent.
"Raytheon Merger" shall have the meaning assigned to such term in the
preamble.
10
"Register" shall have the meaning given such term in Section 10.04(d).
"Regulation G" shall mean Regulation G of the Board as 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 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 from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Required Lenders" shall mean, at any time, Lenders having Commitments
representing at least a majority of the sum of all Commitments at such time or,
for purposes of acceleration pursuant to clause (ii) of the last paragraph of
Article VII, Lenders having Loans and unused Commitments representing at least a
majority of the sum of all Loans outstanding and unused Commitments.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Restricted Subsidiary" shall mean (a) prior to the Raytheon Merger, each
Subsidiary listed on Schedule 1.01, and (b) from and after the Raytheon Merger,
each Subsidiary.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Exposure" shall mean, with respect to any Lender at any
time, the aggregate principal amount at such time of all outstanding Revolving
Loans of such Lender.
"Revolving Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to Section 2.01. Each Revolving Loan shall be a Eurodollar
Revolving Loan or an ABR Loan.
"S&P" shall mean Standard & Poor's Ratings Service.
"Separation Agreement" shall have the meaning assigned to such term in the
Merger Agreement.
"Significant Subsidiary" shall mean any Restricted Subsidiary that would be
a "Significant Subsidiary" at such time, as such term is defined in Regulation
S-X promulgated by the Securities and Exchange Commission as in effect on the
Closing Date. Notwithstanding Regulation S-X, the Guarantor will at all times
prior to the consummation of the HAC Merger be deemed to be a Significant
Subsidiary.
"Stockholders' Equity" shall mean, as at any date of determination (i)
prior to the Raytheon Merger, ▇▇▇▇▇▇ Electronics Corporation's Net Investment in
the combined balance sheet of the Defense Business (such financial statement to
be titled "The Defense Business of ▇▇▇▇▇▇ Electronics Corporation") at such date
(or as of the most recent practicable date preceding such date (but in no event
earlier than the last day of the fiscal quarter preceding such date for which
financial statements are available)) or (ii) on the day of or after the Raytheon
Merger, the stockholders' equity of the Borrower and its consolidated
Subsidiaries as of such date (or as of the most recent practicable date after
the Raytheon Merger which precedes such date (but in no event earlier than the
last day of the fiscal quarter preceding the date for which financial statements
are available)), in each case, as determined in accordance with GAAP.
"Subordinated Intercompany Indebtedness" shall mean Indebtedness of the
Borrower or any Restricted Subsidiary held by any Affiliate thereof that is
subordinated in right of payment to the Obligations on terms at least as
favorable to the Lenders as the subordination provisions of the Delco Notes.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made,
11
owned, controlled or held or (b) that is, at the time any determination is made,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Tax Sharing Agreement" shall have the meaning assigned to such term in the
Separation Agreement.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"Total Capitalization" shall mean, as at any date of determination, the sum
of Total Debt at such date and Stockholders' Equity at such date.
"Total Commitment" shall mean, at any time, the aggregate amount of the
Commitments, as in effect at such time.
"Total Debt" shall mean, as at any date of determination, all Indebtedness
of the Borrower and its consolidated Restricted Subsidiaries (including, without
duplication, all Guarantees by the Borrower and its consolidated Restricted
Subsidiaries of Indebtedness of others) at such date; provided, however, that
the term "Total Debt" shall not include Subordinated Intercompany Indebtedness
or such Indebtedness that shall be Subordinated Intercompany Indebtedness as of
the date of the initial Borrowing in accordance with the provisions of Section
4.02(l).
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"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, the term "Rate" shall include the
LIBO Rate and the Alternate Base Rate.
"Unrestricted Subsidiary" shall mean each Subsidiary, whether now owned or
hereafter acquired, that is not a Restricted Subsidiary. Notwithstanding
anything to the contrary contained herein, immediately after the consummation of
the Raytheon Merger, all Subsidiaries shall be deemed to be Restricted
Subsidiaries.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person.
"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.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 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" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference to this Agreement shall mean
12
this Agreement as amended, restated, supplemented or otherwise modified from
time to time and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that for purposes of determining compliance with the covenants
contained in Article VI, all accounting terms herein shall be interpreted and
all accounting determinations hereunder shall be made in accordance with GAAP as
in effect on the date of this Agreement and applied on a basis consistent with
the application used in the financial statements referred to in Section 3.05.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Revolving Loans to the Borrower, at
any time and from time to time on or after the Closing Date, and until the
earlier of the Maturity Date and the termination of the Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result in (a)(i) such Lender's Revolving
Credit Exposure exceeding (ii) such Lender's Commitment or (b)(i) the aggregate
amount of outstanding Loans exceeding (ii) the Total Commitment. Within the
limits set forth in the preceding sentence, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans on or after the Closing Date and prior to
the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. Loans. (a) Each Revolving Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Commitments; provided, however, that the failure of any Lender
to make any Loan shall not in itself relieve any other Lender of its obligation
to lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.03. The Loans comprising any
Borrowing shall be in an aggregate principal amount that is (i) an integral
multiple of $1,000,000 and not less than $10,000,000 or (ii) equal to the
remaining available balance of the Total Commitment.
(b) Subject to Sections 2.09 and 2.15, each Competitive Borrowing shall be
comprised entirely of Eurodollar Competitive Loans or Fixed Rate Loans, and each
Revolving Credit Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request pursuant to Section 2.03 or 2.04,
as applicable. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender 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. Borrowings of more than one 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 more than 15 Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in New York City as the Administrative Agent may designate not later
than 11:00 a.m., New York City time, and the Administrative Agent shall by 12:00
(noon), New York City time, credit the amounts so received to an account with
the Administrative Agent designated by the Borrower in the applicable Borrowing
Request or Competitive Bid Request, which account must be in the name of the
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 Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the
13
Administrative Agent within one Business Day of demand therefor 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 Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) 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.
SECTION 2.03. Competitive Bid Procedure. (a) In order to request
Competitive Bids, the Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request (i) in the case of
a Eurodollar Competitive Borrowing, not later than 10:00 a.m., New York City
time, four Business Days before the proposed date of such Borrowing and (ii) in
the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City
time, one Business Day before the proposed date of such Borrowing. A Competitive
Bid Request shall not be made within five Business Days after the date of any
previous Competitive Bid Request. 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 D-1 may be rejected by the
Administrative Agent and the Administrative Agent shall notify the Borrower of
such rejection as promptly as practicable. Each Competitive Bid Request shall
refer to this Agreement and specify (i) whether the Borrowing being requested is
to be a Eurodollar Competitive Borrowing or a Fixed Rate Borrowing; (ii) the
date of such Borrowing (which shall be a Business Day); (iii) the number and the
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(c)); (iv) the
aggregate principal amount of such Borrowing, which shall be a minimum of
$10,000,000 and an integral multiple of $1,000,000 and not greater than the
Total Commitment then available; and (v) 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, the Administrative Agent
shall by telecopy in the form set forth in Exhibit D-2 invite the Lenders to bid
to make Competitive Loans pursuant to the Competitive Bid Request.
(b) Each Lender may make one or more Competitive Bids to the Borrower
responsive to a Competitive Bid Request. Each Competitive Bid by a Lender must
be received by the Administrative Agent by telecopy in the form of Exhibit D-3,
(i) in the case of a Eurodollar Competitive Borrowing, not later than 9:30 a.m.,
New York City time, three Business Days before the proposed date of such
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than 9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the format of
Exhibit D-3 may be rejected by the Administrative Agent, and the Administrative
Agent shall notify the applicable Lender as promptly as practicable. Each
Competitive Bid shall refer to this Agreement and specify (x) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (y) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans and (z) the Interest Period
applicable to such Loan or Loans and the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive Bid shall have been made and
the identity of the Lender that shall have made each bid.
(d) The Borrower may, subject only to the provisions of this paragraph
(d), accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject each Competitive Bid, (x) in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before the date of the proposed Competitive Borrowing and (y) in
the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City
time, on the proposed date of the Competitive Borrowing; provided, however, that
(i) the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower has
decided to reject a Competitive Bid made at a lower
14
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by the Borrower shall not exceed (but may be less than) the principal
amount specified in the Competitive Bid Request, (iv) if the Borrower shall
accept a Competitive Bid or Bids made at a particular Competitive Bid Rate but
the amount of such Competitive Bid or Bids would cause the total amount 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 Competitive Bid or
Bids in an amount equal to the amount specified in the Competitive Bid Request
less the amount of all other Competitive Bids so accepted, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Bid and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further, however,
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, in
what amount and at what Competitive Bid Rate), and each successful bidder will
thereupon become bound, upon the terms and subject to the conditions hereof, to
make the Competitive Loan in respect of which its Competitive Bid has been
accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
Borrower at least one quarter of an hour earlier than the time by which the
other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) above.
SECTION 2.04. Borrowing Procedure. In order to request a Borrowing (other
than a Competitive Borrowing, as to which this Section 2.04 shall not apply),
the Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before a proposed
Borrowing 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. Each Borrowing Request
shall be irrevocable, signed by or on behalf of the Borrower, shall be
accompanied by a Ratio Certificate (if the requested Borrowing is to be made
prior to the Raytheon Merger) and shall specify the following information: (i)
whether the Borrowing then being requested is to be a Eurodollar Borrowing or an
ABR Borrowing; (ii) the date of such Borrowing (which shall be a Business Day);
(iii) the number and location of the account to which funds are to be disbursed
(which shall be an account that complies with the requirements of Section
2.02(c)); (iv) the amount of such Borrowing; and (v) if such Borrowing is to be
a Eurodollar Borrowing, the Interest Period with respect thereto; provided,
however, that, notwithstanding any contrary specification in any Borrowing
Request, each requested Borrowing shall comply with the requirements set forth
in Section 2.02. If no election as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall promptly advise
the Lenders of any notice given pursuant to this Section 2.04 (and the contents
thereof), and of each Lender's portion of the requested Borrowing.
SECTION 2.05. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby agrees that the outstanding principal balance of each Revolving Loan
shall be payable on the Maturity Date and the outstanding principal balance of
each Competitive Loan shall be payable on the last day of the Interest Period
applicable thereto. Each Loan shall bear interest from and including the date
of such Loan on the outstanding principal balance thereof as set forth in
Section 2.07.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the
15
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) of this Section 2.05 shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the failure
of any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 10.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.06. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the last day of March, June, September and
December in each year, and on the date on which the Commitment of such Lender
shall be terminated as provided herein, a facility fee (a "Facility Fee") equal
to the Applicable Percentage per annum in effect from time to time on the
average daily amount of the Commitment of such Lender (whether used or unused)
during the preceding quarter (or shorter period commencing with the date hereof
or ending with the Maturity Date or the date on which the Commitment of such
Lender shall expire or be terminated). 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 Lender shall commence to accrue on the date of this
Agreement and shall cease to accrue on the earlier of the Maturity Date and the
date on which the Commitment of such Lender shall be terminated as provided
herein.
(b) The Borrower agrees to pay to each of the Agents or their Affiliates,
for their own account, the fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Agents' Fees").
(c) All Fees shall be paid on the dates due, in immediately available
funds. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions of
Section 2.08, 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 the Alternate Base Rate is 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.
(b) Subject to the provisions of Section 2.08, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to (i)
in the case of each Revolving Loan, the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Percentage in effect from time to
time and (ii) in the case of each Competitive Loan, the LIBO Rate for the
Interest Period in effect for such Borrowing plus the Margin offered by the
Lender making such Loan and accepted by the Borrower pursuant to Section 2.03.
(c) Subject to the provisions of Section 2.08, each Fixed Rate Loan shall
bear interest (computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal to the fixed rate of interest
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03.
(d) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or LIBO Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.08. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount to but excluding the date of actual payment (after as well as before
judgment) (a) in
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the case of overdue principal, at the rate otherwise applicable to such Loan
pursuant to Section 2.07 plus 2.00% per annum and (b) in all other cases, 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 the case may be, when determined by reference to
the Prime Rate and over a year of 360 days at all other times) equal to the sum
of the Alternate Base Rate plus 2.00%.
SECTION 2.09. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that (a) Dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or (b) the rates at which such Dollar deposits are being offered will
not adequately and fairly reflect the cost to Lenders having Commitments
representing at least 20% of the Total Commitment of making or maintaining
Eurodollar Loans during such Interest Period, or (c) reasonable means do not
exist for ascertaining the LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice of such determination to
the Borrower and the Lenders. In the event of any such determination (other
than any such determination pursuant to clause (b) of the preceding sentence, to
the extent the circumstances giving rise to such determination would also give
Lenders the right to demand additional amounts pursuant to Section 2.14), until
the Administrative Agent shall have advised the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) any request by
the Borrower for a Eurodollar Revolving Credit Borrowing pursuant to Section
2.04 shall be deemed to be a request for an ABR Borrowing and (ii) any request
by the Borrower for a Eurodollar Competitive Borrowing pursuant to Section 2.03
shall be of no force and effect and shall be denied by the Administrative Agent.
Each determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
SECTION 2.10. Termination and Reduction of Commitments. (a) The
Commitments shall automatically terminate on the Maturity Date.
(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 Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $10,000,000 and (ii) the Total Commitment shall not be reduced to an
amount that is less than the sum of the Aggregate Revolving Credit Exposure and
the aggregate outstanding principal amount of the Competitive Loans at the time.
(c) Each reduction in the Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments. The Borrower
shall pay to the Administrative Agent for the account of the applicable Lenders,
on the date of each termination or reduction, the Facility Fees on the amount
of the Commitments so terminated or reduced accrued to but excluding the date of
such termination or reduction.
SECTION 2.11. Conversion and Continuation of Revolving Credit Borrowings.
The Borrower shall have the right at any time upon prior irrevocable notice to
the Administrative Agent (a) not later than 10:00 a.m., New York City time, on
the day of conversion, to convert any Eurodollar Borrowing into an ABR
Borrowing, (b) not later than 10:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 10:00 a.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b)
regarding the principal amount and maximum number of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender by recording
for the account of such Lender the new Loan of such Lender resulting from
such conversion and reducing the
17
Loan (or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing; and
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing.
Each notice pursuant to this Section 2.11 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted into or continued as a Eurodollar Borrowing or an
ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted into or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto (which may not end after the Maturity Date). If no Interest
Period is specified in any such notice with respect to any conversion into or
continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative Agent
shall advise the other Lenders of any notice given pursuant to this Section 2.11
and of each Lender's portion of any converted or continued Borrowing. If the
Borrower shall not have given notice in accordance with this Section 2.11 to
continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.11 to convert such
Borrowing), such Borrowing shall, at the end of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof), automatically be continued
into a new Interest Period as an ABR Borrowing. The Borrower shall not have the
right to continue or convert the Interest Period with respect to any Competitive
Borrowing pursuant to this Section 2.11.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing (other than a Competitive
Borrowing), in whole or in part, upon at least three Business Days' prior
written or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Administrative Agent before 11:00 a.m., New York City
time; provided, however, that each partial prepayment shall be in an amount that
is an integral multiple of $1,000,000 and not less than $10,000,000. The
Borrower shall not have the right to prepay any Competitive Borrowing.
(b) In the event of any termination of the Commitments, the Borrower shall
repay or prepay all its outstanding Revolving Credit Borrowings on the date of
such termination. In the event of any partial reduction of the Commitments,
then (i) at or prior to the effective date of such reduction, the Administrative
Agent shall notify the Borrower and the Lenders of the Aggregate Revolving
Credit Exposure and (ii) if the Aggregate Revolving Credit Exposure would exceed
the available Total Commitment after giving effect to such reduction, the
Borrower shall, on the date of such reduction, repay or prepay Revolving Credit
Borrowings in an amount sufficient to eliminate such excess.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments of Eurodollar Loans under this Section 2.12 shall be accompanied
by accrued interest on the principal amount being prepaid to the date of
payment.
SECTION 2.13. Required Commitment Reductions and Prepayments. (a) If the
Borrower or any Restricted Subsidiary shall complete any Asset Sale, then not
later than the third Business Day following the receipt by the Borrower or any
Restricted Subsidiary of any Net Cash Proceeds therefrom (or, if such Asset Sale
was completed prior to the Raytheon Merger, the fifth Business Day following the
final determination of the Closing Date Final Amount pursuant to Article 7 of
the Separation Agreement), the Borrower shall permanently reduce the Commitments
and/or the
18
commitments under the 5-year Agreement and/or the commitments under one and/or
both of the Raytheon Credit Agreements, at the option of the Borrower, by an
aggregate amount, which when aggregated with all required commitment reductions
made pursuant to Section 2.13 (a) or (b) prior to such date, shall equal at
least 75% of the aggregate Net Cash Proceeds of such Asset Sale and all other
Asset Sales and Debt Issuances made prior to such date and, to the extent the
outstanding Loans would exceed the Total Commitment as so reduced, prepay any
Revolving Loans then outstanding on or prior to the effectiveness of such
reduction by an amount sufficient to eliminate such excess.
(b) If prior to the second anniversary of the Closing Date the Borrower or
any Restricted Subsidiary shall complete any Debt Issuance, then within three
Business Days of the receipt by the Borrower or any Restricted Subsidiary of any
Net Cash Proceeds therefrom, the Borrower shall on such date permanently reduce
the Commitments and/or the commitments under the 5-year Agreement and/or, after
the consummation of the Raytheon Merger, the commitments under one and/or both
of the Raytheon Credit Agreements, at the option of the Borrower, by an
aggregate amount, which when aggregated with all required commitment reductions
made pursuant to Section 2.13 (a) or (b) prior to such date, shall equal at
least 75% of the aggregate Net Cash Proceeds of such Debt Issuance and all other
Debt Issuances and Asset Sales made prior to such date and, to the extent the
outstanding Loans would exceed the Total Commitment as so reduced, prepay any
Revolving Loans then outstanding on or prior to the effectiveness of such
reduction by an amount sufficient to eliminate such excess.
(c) In the event any prepayment required by Section 2.13(a) or (b) with
respect to any Revolving Loan would become due on a date that is not the last
day of the relevant Interest Period therefor and as a result thereof the
Borrower would incur liabilities under Section 2.16, then (i) if the last day of
the relevant Interest Period for such Loan would occur within 180 days of the
date on which such prepayment is otherwise due, and (ii) no Default or Event of
Default shall have occurred and be continuing, such prepayment may be made at
the Borrower's election on the last day of the relevant Interest Period for such
Loan and, pending such prepayment, the Borrower shall deposit such Net Cash
Proceeds with the Administrative Agent which shall hold such Net Cash Proceeds
for the benefit of the Lenders, in an interest bearing account, until such time
as such proceeds can be applied towards payment of the Loans in accordance with
the provisions of this Agreement without resulting in any liability to the
Borrower under Section 2.16. Until such Loans are so prepaid they shall
continue to accrue interest as provided hereunder, provided that all interest
which may accrue on any amounts so held in escrow shall be delivered by the
Administrative Agent to the Borrower following prepayment of the principal of
and accrued interest on such Loans.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or
credit extended by any Lender or shall impose on such Lender or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans or Fixed Rate Loans made by such Lender, and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Loan or Fixed Rate Loan, or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise) by an amount deemed by such Lender to be material, then the
Borrower will pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender shall have determined that the adoption after the date
hereof of any law, rule, regulation, agreement or guideline regarding capital
adequacy, or any change after the date hereof in any such law, rule, regulation,
agreement or guideline (whether such law, rule, regulation, agreement or
guideline has been adopted) or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
any Lender's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's
capital or on the capital of such Lender's holding company, if any, as a
consequence of this Agreement or the Loans made by such Lender pursuant hereto
to a level below that which such Lender or such Lender's holding company could
have achieved but for such applicability, adoption, change or compliance (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time the
19
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company (including the
calculation thereof) as specified in paragraph (a) or (b) above shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital shall not constitute a waiver of such Lender's right to
demand such compensation. The protection of this Section shall be available to
each Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, agreement, guideline or other
change or condition that shall have occurred or been imposed. Notwithstanding
any other provision of this Section, no Lender shall be entitled to demand
compensation hereunder in respect of any Competitive Loan if it shall have been
aware of the event or circumstance giving rise to such demand at the time it
submitted the Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter
(for the duration of such unlawfulness) be made by such Lender hereunder
(or be continued for additional Interest Periods and ABR Loans will not
thereafter (for such duration) be converted into Eurodollar Loans),
whereupon such Lender shall not submit a Competitive Bid in response to a
request for a Eurodollar Competitive Loan and any request for a Eurodollar
Borrowing (or to convert an ABR Borrowing to a Eurodollar Borrowing or to
continue a Eurodollar Borrowing for an additional Interest Period) shall,
as to such Lender only, be deemed a request for an ABR Loan unless such
declaration shall be subsequently withdrawn (or a request to continue an
ABR Loan as such for an additional Interest Period or to convert a
Eurodollar Loan into an ABR Loan, as the case may be); and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar
Loans shall be automatically con verted to ABR Loans as of the effective
date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
any event, other than a default by such Lender in the performance of its
obligations hereunder, that results in (i) such Lender receiving or being deemed
to receive any amount on account of the principal of any Fixed Rate Loan or
Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii)
the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of the
Interest Period with respect to any Eurodollar Loan, in each case prior to the
end of the Interest Period in effect therefor or (iii) any Fixed Rate Loan or
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be
made pursuant to a conversion or continuation under Section 2.11) not being made
after notice of such Loan shall have been given by the Borrower hereunder (any
of the events referred to in this sentence being
20
called a "Breakage Event"). In the case of any Breakage Event, such loss shall
include an amount equal to the excess, as reasonably determined by such Lender,
of (i) its cost of obtaining funds for the Eurodollar Loan or Fixed Rate Loan
that is the subject of such Breakage Event for the period from the date of such
Breakage Event to the last day of the Interest Period in effect (or that would
have been in effect) for such Loan over (ii) the amount of interest likely to be
realized by such Lender in redeploying the funds released or not utilized by
reason of such Breakage Event for such period. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section 2.16 shall be delivered to the Borrower and shall be
conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided in the two
succeeding sentences with respect to Competitive Borrowings and as required
under Section 2.15, each Borrowing, each payment or prepayment of principal of
any Borrowing, each payment of interest on the Loans, each payment of the
Facility Fees, each reduction of the Commitments and each continuation or
conversion of any Borrowing to a Borrowing of any Type shall be allocated pro
rata among the Lenders in accordance with their respective Commitments (or, if
such Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). Each payment of
principal of any Competitive Borrowing shall be allocated pro rata among the
Lenders 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 Competitive Borrowing shall be
allocated pro rata among the Lenders 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 Lenders at any time, each
outstanding Competitive Borrowing shall be deemed to have utilized the
Commitments of the Lenders (including those Lenders that shall not have made
Loans as part of such Competitive Borrowing) pro rata in accordance with such
respective Commitments. Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole Dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant 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 Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Revolving Loan or Loans as
a result of which the unpaid principal portion of its Revolving Loans shall be
proportionately less than the unpaid principal portion of the Revolving Loans of
any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Revolving Loans of such other Lender,
so that the aggregate unpaid principal amount of the Revolving Loans and
participations in Revolving Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Revolving Loans then
outstanding as the principal amount of its Revolving Loans prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Revolving Loans outstanding prior to such exercise of
banker's lien, setoff or counterclaim or other event; provided, however, that,
if any such purchase or purchases or adjustments shall be made pursuant to this
Section and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment restored without
interest. The Borrower expressly consents to the foregoing arrangements and
agrees that any Lender holding a participation in a Revolving Loan deemed to
have been so purchased may exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Revolving Loan
directly to the Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder not later than 12:00 (noon), New York City time, on the date
when due in immediately available Dollars, without defense, setoff or
counterclaim. Each such payment shall be made to the Administrative Agent at
its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a
21
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 the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by the Borrower hereunder
shall be made, in accordance with Section 2.19, free and clear of and without
deduction for any and all current or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding (i)
income taxes imposed on the net income of the Administrative Agent or any Lender
(or any transferee or assignee thereof, including a participation holder (any
such entity a "Transferee")) and (ii) franchise taxes imposed on the net income
of the Administrative Agent or any Lender (or Transferee), in each case by the
jurisdiction under the laws of which the Administrative Agent or such Lender (or
Transferee) is organized or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, being called "Taxes"). If the
Borrower shall be required to deduct any Taxes from or in respect of any sum
payable hereunder to the Administrative Agent or any Lender (or any Transferee),
(i) the sum payable shall be increased by the amount (an "additional amount")
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.20) the
Administrative Agent or such Lender (or Transferee), as the case may be, shall
receive 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 Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent and each Lender
(or Transferee) for the full amount of Taxes and Other Taxes paid by the
Administrative Agent or such Lender (or Transferee), as the case may be, and any
liability (including penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by the Administrative Agent or a Lender (or
Transferee), or the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive and binding for all purposes. Such indemnification
shall be made within 30 days after the date the Administrative Agent or any
Lender (or Transferee), as the case may be, makes written demand therefor.
(d) If the Administrative Agent or a Lender (or Transferee) receives a
refund in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.20, it shall within 30 days from
the date of such receipt pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.20 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender (or Transferee) and without interest (other than interest paid by
the relevant Governmental Authority with respect to such refund); provided,
however, that the Borrower, upon the request of the Administrative Agent or such
Lender (or Transferee), shall repay the amount paid over to the Borrower (plus
penalties, interest or other charges) to the Administrative Agent or such Lender
(or Transferee) in the event the Administrative Agent or such Lender (or
Transferee) is required to repay such refund to such Governmental Authority.
(e) As soon as practicable after the date of any payment of Taxes or Other
Taxes by the Borrower to the relevant Governmental Authority, the Borrower will
deliver to the Administrative Agent, at its address referred to in Section
10.01, the original or a certified copy of a receipt issued by such Governmental
Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.20 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(g) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") shall deliver to each of the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S.
22
Federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", a Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form W-8,
a certificate representing that such Non-U.S. Lender is not a bank for purposes
of Section 881(c) of the Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments by the Borrower under this Agreement. Such
forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on or before the date such participation holder becomes a
Transferee hereunder) and on or before the date, if any, such Non-U.S. Lender
changes its applicable lending office by designating a different lending office
(a "New Lending Office"). In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Notwithstanding any other provision of this
Section 2.20(g), a Non-U.S. Lender shall not be required to deliver any form
pursuant to this Section 2.20(g) that such Non-U.S. Lender is not legally able
to deliver.
(h) The Borrower shall not be required to indemnify any Non-U.S. Lender or
to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Non-U.S. Lender became a party
to this Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; provided, however,
that this paragraph (h) shall not apply (x) to any Transferee or New Lending
Office that becomes a Transferee or New Lending Office as a result of an
assignment, participation, transfer or designation made at the request of the
Borrower and (y) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee), acting through a New Lending Office,
would be entitled to receive (without regard to this paragraph (h)) do not
exceed the indemnity payment or additional amounts that the person making the
assignment, participation or transfer to such Transferee, or Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (g) above.
(i) Nothing contained in this Section 2.20 shall require any Lender (or
any Transferee) or the Administrative Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty
to Mitigate. (a) In the event (i) any Lender delivers a certificate requesting
compensation pursuant to Section 2.14, (ii) any Lender delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority on account of any
Lender pursuant to Section 2.20, the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to transfer and assign, without recourse (in accordance with and subject
to the restrictions contained in Section 10.04), all of its interests, rights
and obligations under this Agreement to an assignee which shall assume such
assigned obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided that (x) such assignment shall not conflict with any
law, rule or regulation or order of any court or other Governmental Authority
having jurisdiction, (y) the Borrower shall have received the prior written
consent of the Administrative Agent, which consent shall not unreasonably be
withheld, and (z) the Borrower or such assignee shall have paid to the affected
Lender in immediately available funds an amount equal to the sum of the
principal of and interest accrued to the date of such payment on the outstanding
Loans of such Lender plus all Fees and other amounts accrued for the account of
such Lender hereunder (including any amounts under Section 2.14 and Section
2.16); provided further that if prior to any such transfer and assignment the
circumstances or event that resulted in such Lender's claim for compensation
under Section 2.14 or notice under Section 2.15 or the amounts paid pursuant to
Section 2.20, as the case may be, cease to cause such Lender to suffer increased
costs or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.15, or cease
to result in amounts being payable under Section 2.20, as the case may be
(including as a result of any action taken by such Lender pursuant to paragraph
(b) below), or if such Lender shall waive its right to claim further
compensation under Section 2.14 in respect of such circumstances or event or
shall withdraw its notice under Section 2.15 or shall waive its right to further
23
payments under Section 2.20 in respect of such circumstances or event, as the
case may be, then such Lender shall not thereafter be required to make any such
transfer and assignment hereunder.
(b) If (i) any Lender shall request compensation under Section 2.14, (ii)
any Lender delivers a notice described in Section 2.15 or (iii) the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority on account of any Lender, pursuant to Section 2.20, then, such Lender
shall use reasonable efforts (which shall not require such Lender to incur an
unreimbursed loss or unreimbursed cost or expense or otherwise take any action
inconsistent with its internal policies or legal or regulatory restrictions or
suffer any disadvantage or burden deemed by it to be significant) (x) to file
any certificate or document reasonably requested in writing by the Borrower or
(y) to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such filing, assignment, delegation and transfer.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent and each
of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of the
Significant Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted and (c)
is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect. The
Borrower has the corporate power and authority to execute, deliver and perform
its obligations under this Agreement and to borrow hereunder. Schedule 3.01
sets forth each Significant Subsidiary of the Borrower in existence on the
Closing Date.
SECTION 3.02. Authorization. The execution, delivery and performance by
the Borrower of this Agreement and the borrowings hereunder (collectively, the
"Transactions") (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of
law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of the Borrower or any
Significant Subsidiary, (B) any order of any Governmental Authority or (C) any
material provision of any material indenture, agreement or other instrument to
which the Borrower or any Significant Subsidiary is a party or by which any of
them or any of their property is or may be bound, (ii) be in material conflict
with, result in a material breach of or constitute (alone or with notice or
lapse of time or both) a material default under, or give rise to any right to
accelerate or to require the prepayment, repurchase or redemption of any
obligation under any such material indenture, agreement or other instrument or
(iii) result in the creation or imposition of any Lien upon or with respect to
any property or assets now owned or hereafter acquired by the Borrower or any
Significant Subsidiary.
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except those which have
been made or obtained.
SECTION 3.05. Financial Statements. The Borrower has heretofore furnished
to the Lenders the consolidated balance sheet, statement of income and statement
of cash flows of the Defense Business as of and for the fiscal year ended
December 31, 1996, audited by and accompanied by the opinion of Deloitte &
Touche LLP, independent public accountants. Such financial statements present
fairly the financial condition and results of operations of the Defense Business
as of such date and for such period and were prepared in accordance with GAAP
applied on a consistent basis. Such financial
24
statements and the notes thereto, and Schedule 3.05, when taken together,
disclose all material liabilities, direct or contingent, of the Borrower and its
consolidated Restricted Subsidiaries as of the date thereof.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, since
December 31, 1996.
SECTION 3.07. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.07, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
Subsidiary or any business, property or rights of any such person (i) that
involve this Agreement or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
(b) None of the Borrower or any of the Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation, or is in default with respect to
any judgment, writ, injunction, decree or order of any Governmental Authority
(including any of the foregoing relating to the environment), where such
violation or default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.08. Federal Reserve Regulations. (a) Neither the Borrower nor
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately for any purpose
that entails a violation of, or that is inconsistent with, the provisions of the
Regulations of the Board, including Regulation G, U or X. Margin Stocks do not
constitute 25% or more of the fair market value of the assets of the Borrower
and the Subsidiaries subject to the restrictions of Section 6.01.
SECTION 3.09. Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.10. Tax Returns. Each of the Borrower and the Subsidiaries has
filed or caused to be filed all Federal and all material state, local and
foreign tax returns or materials required to have been filed by it and has paid
or caused to be paid all taxes shown to be due and payable by it on such returns
and all assessments received by it, except taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such
Subsidiaries, as applicable, shall have set aside on its books adequate reserves
in accordance with GAAP.
SECTION 3.11. No Material Misstatements. Neither (a) the Confidential
Information Memorandum nor (b) any other information, report, financial
statement, exhibit or schedule furnished in writing by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or included herein or delivered pursuant hereto
contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, the Borrower represents only that it acted
in good faith and utilized reasonable assumptions and due care in the
preparation of such information, report, financial statement, exhibit or
schedule.
SECTION 3.12. Employee Benefit Plans. Each of the Borrower and its ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. The
present value of all benefit liabilities under each Plan (based on those
assumptions used to fund such Plan) did not, as of the last annual valuation
date applicable thereto before the Closing Date, exceed the fair market value of
the assets of such Plan as
25
of such date, and the present value of all benefit liabilities of all
underfunded Plans (based on those assumptions used to fund each such Plan) did
not, as of the last annual valuation dates applicable thereto before the Closing
Date, exceed by more than $280 million the fair market value of the assets of
all such underfunded Plans as of such dates.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans hereunder are subject to the
satisfaction of the following conditions:
SECTION 4.01. All Borrowings. On the date of each Borrowing (other than,
in the case of paragraph (b) below, a Borrowing that does not increase the
aggregate principal amount of Loans outstanding of any Lender):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or 2.04, as applicable.
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the
date of such Borrowing with the same effect as though made on and as of
such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) At the time of and immediately after such Borrowing, no Event of
Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) (except as aforesaid) and (c) of this Section 4.01.
SECTION 4.02. First Borrowing. On the date of the initial Borrowing:
(a) The Administrative Agent shall have received, on behalf of itself
and the Lenders and the Agents, the favorable written opinions of (i)
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Secretary of the Borrower and (ii) Weil, Gotshal &
▇▇▇▇▇▇ LLP, special counsel for the Borrower, substantially to the effect
set forth in Exhibits E and F, respectively, each (A) dated the date of the
initial Borrowing, (B) addressed to the Administrative Agent, the Lenders
and the Agents, and (C) covering such other matters relating to this
Agreement and the transactions contemplated hereby as the Administrative
Agent and the Syndication Agent may reasonably request as a result of any
change in law or regulation after the Closing Date relating to such
transactions or any material change in facts previously disclosed to the
Lenders, or disclosure of facts not previously disclosed to the Lenders,
and the Borrower hereby requests such counsel deliver such opinions.
(b) All legal matters incident to this Agreement, the Borrowings and
extensions of credit hereunder shall be reasonably satisfactory to the
Lenders and to Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative
Agent and the Syndication Agent.
(c) The Administrative Agent and the Syndication Agent shall have
received (i) a copy of the certificate of incorporation, including all
amendments thereto, of the Borrower and the Guarantor, each certified as of
a recent date by the Secretary of State of the State of Delaware, and a
certificate as to the good standing of the Borrower and the Guarantor as of
a recent date, from such Secretary of State; (ii) a certificate of the
Secretary or Assistant Secretary of each of the Borrower and the 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 the Guarantor, as
applicable, as in effect on the Closing Date and at all times since a date
prior to the date of the resolutions described in clause (B) below, (B)
that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of the Borrower or the Guarantor, as
applicable, authorizing the execution, delivery and performance of this
Agreement and, in the case of the Borrower, the borrowings hereunder, and
that such resolutions have not been modified, rescinded or amended and are
in full force and effect,
26
(C) that the certificate of incorporation of the Borrower or the Guarantor,
as applicable, has not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature of
each officer executing this Agreement or any other document delivered in
connection herewith on behalf of the Borrower or the Guarantor, as
applicable; (iii) a certificate of another officer of the Borrower or the
Guarantor, as applicable, as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents as the Lenders or Cravath, Swaine
& ▇▇▇▇▇, counsel for the Administrative Agent and the Syndication Agent,
may reasonably request.
(d) The Administrative Agent and the Syndication Agent shall each
have received (i) a certificate, dated the date of the initial Borrowing
and signed by a Financial Officer of the Borrower, confirming compliance
with the conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01, (ii) a Ratio Certificate, calculating the ratio of Total Debt
to Total Capitalization on the Closing Date and on the date of the initial
Borrowing and (iii) a certificate, dated the date of the initial Borrowing,
and signed by a Financial Officer of the Borrower, setting forth all Asset
Sales as of such date made after the Closing Date, and the amount of Net
Cash Proceeds received by the Borrower or any of its Restricted
Subsidiaries in connection therewith.
(e) The consummation of the Raytheon Merger shall have been approved
by the shareholders of Raytheon and the shareholders of each class of
common stock of GM shall have approved the GM Transactions (as defined in
the ▇▇▇▇▇▇ Distribution Agreement) and those related transactions submitted
for the approval of such shareholders.
(f) All requisite Governmental Authorities shall have approved or
consented to the Raytheon Merger and the transactions contemplated hereby
to the extent required, all applicable waiting periods (including under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976) shall have expired
and there shall be no governmental or judicial action, actual or overtly
threatened, restraining, preventing or imposing burdensome conditions on
the Raytheon Merger or the transactions contemplated hereby.
(g) There shall be no litigation or administrative proceedings or
other legal or regulatory developments, actual or overtly threatened, that,
in the judgment of the Lenders, involve a reasonable possibility of
prohibiting or imposing burdensome conditions on the Raytheon Merger or the
transactions contemplated hereby.
(h) The Administrative Agent and the other Agents and their
Affiliates shall have received all Fees and other amounts due and payable
on or prior to the Closing Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
(i) The Borrower shall have provided to the Lenders an opinion of
Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Borrower, to the effect
that the Raytheon Merger shall qualify as a "reorganization" within the
meaning of Section 368 of the Code and either (A) a copy of a ruling by the
Internal Revenue Service confirming the tax-free status of certain related
transactions (including the distribution of HNS stock by the Borrower to
GM, the distribution of the Borrower's stock by GM to its shareholders and
the liquidation of ▇▇▇▇▇▇ Electronics Corporation into GM and HAC into the
Borrower prior to the Raytheon Merger) or (B) an opinion of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, special counsel to GM to such effect (which opinion shall be
substantially identical to the opinion of such counsel delivered to GM),
the conclusion of which shall be substantially in the form set forth as
Exhibit G.
(j) The HAC Merger shall have occurred.
(k) The 5-year Agreement shall have been, or shall simultaneously be,
executed and delivered by the parties thereto and shall be in full force
and effect.
(l) The subordination provisions attached as a rider to the Delco
Notes shall have been incorporated into and made a part of the Delco Notes.
27
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under this Agreement shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing, the Borrower will, and will
cause each of the Restricted Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. In the case of
the Borrower and the Significant Subsidiaries:
(a) do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights and franchises,
except as otherwise expressly permitted under Section 6.03 and
(b) comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, whether
now in effect or hereafter enacted; and at all times maintain, preserve and
protect all property material to the conduct of its business.
SECTION 5.02. Insurance. Keep its insurable properties adequately insured
at all times by financially sound and reputable insurers; and 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, provided that nothing in this Section 5.02 shall
preclude the Borrower or any Subsidiary from being self-insured (to the extent
deemed prudent by the Borrower or such Subsidiary and customary with companies
in the same or similar business).
SECTION 5.03. Taxes. Pay and discharge promptly when due all material
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof unless and to the extent the same are
being contested in good faith by appropriate proceedings and adequate reserves
with respect thereto shall, to the extent required by GAAP, have been set aside.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, a consolidated
balance sheet, statement of income and statement of cash flows showing the
financial condition and results of operations of the Defense Business and,
after the consummation of the Raytheon Merger, the Borrower and its
consolidated Subsidiaries as of and for the fiscal year then ended, all
audited by Deloitte & Touche LLP or other independent public accountants of
recognized national standing and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to the
effect that such consolidated financial statements fairly present the
financial condition and results of operations of the Defense Business or
the Borrower and its consolidated Subsidiaries, as the case may be, on a
consolidated basis in accordance with GAAP;
(b) within 45 days (or, in the case of the fiscal quarter ending March
31, 1997, 60 days) after the end of each of the first three fiscal quarters
of each fiscal year, a consolidated balance sheet, statement of income and
statement of cash flows showing the financial condition and results of
operations of the Defense Business and, after the consummation of the
Raytheon Merger, the Borrower and its consolidated Subsidiaries as of and
for the fiscal quarter then ended and the then elapsed portion of the
fiscal year, all certified by a Financial Officer of the Borrower as fairly
presenting the financial condition and results of operations of the Defense
Business or the Borrower, as the case may be, on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, (i) a certificate of a Financial Officer of the
Borrower certifying that no Event of
28
Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii) if the
Raytheon Merger has not occurred, (x) a Ratio Certificate, calculating the
ratio of Total Debt to Total Capitalization as of the last day of the
preceding fiscal quarter and (y) a certificate of a Financial Officer of
the Borrower certifying that such financial statements and the notes
thereto, and Schedule 3.05 (as modified, if necessary, by an updated
schedule attached to such certificate), when taken together, disclose all
material liabilities, direct or contingent, of the Borrower and its
consolidated Restricted Subsidiaries as of the date thereof;
(d) no later than May 30, 1997, a consolidated balance sheet,
statement of income and statement of cash flows showing the financial
condition of the Borrower and its consolidated Subsidiaries as of December
31, 1996, all certified by a Financial Officer of the Borrower as fairly
presenting the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP;
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed to its
shareholders, as the case may be; and
(f) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Significant Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Promptly upon any Responsible
Officer of the Borrower obtaining knowledge of any of the following, furnish to
the Administrative Agent and each Lender written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any notice of intention of any
person to file or commence, any action, suit or proceeding, whether at law
or in equity or by or before any Governmental Authority, against the
Borrower or any Affiliate thereof that could reasonably be expected to
result in a Material Adverse Effect or materially impair the Borrower's
ability to perform its obligations under this Agreement;
(c) any change in the ratings by S&P or ▇▇▇▇▇'▇ of the Index Debt; and
(d) any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects with
the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent and each Lender as soon as possible after, and in any event
within 30 days after any Responsible Officer of the Borrower or any ERISA
Affiliate knows that, any ERISA Event has occurred that, alone or together with
any other ERISA Event known to have occurred, could reasonably be expected to
result in liability of the Borrower in an aggregate amount exceeding $75,000,000
in any year, a statement of a Financial Officer of the Borrower setting forth
details as to such ERISA Event and the action, if any, that the Borrower
proposes to take with respect thereto
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.
Maintain financial records in accordance with GAAP and, upon reasonable notice,
permit any representatives designated by the Administrative Agent or any Lender
to visit and inspect the financial records and the properties of the Borrower or
any Significant Subsidiary during normal business hours and to discuss the
affairs, finances and condition of the Borrower or any Significant Subsidiary
with the officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only for the
purposes set forth in the preamble to this Agreement.
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ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under this Agreement have been paid in full, unless the
Required Lenders shall otherwise consent in writing, the Borrower will not, and
will not cause or permit any of the Restricted Subsidiaries to:
SECTION 6.01. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower or any of its
Restricted Subsidiaries existing on the date hereof except, in the case of
the Borrower, any such Lien securing Indebtedness for borrowed money in
excess of $5,000,000 that is not set forth in Schedule 6.01, provided that
all Liens permitted by this paragraph (a) shall secure only those
obligations which they secure on the date hereof;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Restricted Subsidiary (or, in
the case of any property or asset of Raytheon or any of its subsidiaries,
prior to consummation of the Raytheon Merger), provided that (i) such Lien
is not created in contemplation of or in connection with such acquisition
(or the Raytheon Merger) and (ii) such Lien does not apply to any other
property or assets of the Borrower or any Restricted Subsidiary;
(c) Liens for taxes not yet past due or which are being contested in
compliance with Section 5.03;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03;
(e) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(f) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than capital leases),
statutory obligations, surety and appeal bonds, advance payment bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on
use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Restricted Subsidiaries;
(h) Liens upon any property acquired, constructed or improved by the
Borrower or any Restricted Subsidiary which are created or incurred within
360 days of such acquisition, construction or improvement to secure or
provide for the payment of any part of the purchase price of such property
or the cost of such construction or improvement, including carrying costs
(but no other amounts), provided that any such Lien shall not apply to any
other property of the Borrower or any Subsidiary;
(i) Liens on the property or assets of any Restricted Subsidiary in
favor of the Borrower;
(j) extensions, renewals and replacements of Liens referred to in
paragraphs (a) through (i) of this Section 6.01, provided that any such
extension, renewal or replacement Lien shall be limited to the property or
assets covered by the Lien extended, renewed or replaced
30
and that the obligations secured by any such extension, renewal or
replacement Lien shall be in an amount not greater than the amount of the
obligations secured by the Lien extended, renewed or replaced;
(k) any Lien of the type described in clause (c) of the definition of
the term "Lien" on securities imposed pursuant to an agreement entered into
for the sale or disposition of such securities pending the closing of such
sale or disposition; provided such sale or disposition is otherwise
permitted hereunder;
(l) Liens arising in connection with any Permitted Receivables
Program (to the extent the sale by the Borrower or the applicable
Restricted Subsidiary of its accounts receivable is deemed to give rise to
a Lien in favor of the purchaser thereof in such accounts receivable or the
proceeds thereof); and
(m) Liens to secure Indebtedness if, immediately after the grant
thereof, the aggregate amount of all Indebtedness secured by Liens that
would not be permitted but for this clause (m), when aggregated with the
amount of Indebtedness permitted by Section 6.04(h), does not exceed the
greater of (i) $100,000,000 or (ii) 15% of Consolidated Net Tangible Assets
as shown on the most recent consolidated balance sheet delivered pursuant
to Section 3.05 or 5.04(a) or (b), as the case may be.
SECTION 6.02. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease back such property; provided,
however, that the Borrower and the Restricted Subsidiaries may enter into any
such transaction to the extent the Lien on any such property would be permitted
by Section 6.01(m).
SECTION 6.03. Mergers, Consolidations and Sales of Assets. In the case of
the Borrower, merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of, or permit the sale, transfer, lease or other disposition
of (in one transaction or in a series of transactions) all or substantially all
of its assets, or agree to do any of the foregoing; provided, however, that (i)
any person may merge into or consolidate with the Borrower in a transaction in
which the Borrower is the surviving corporation if no Event of Default or
Default shall have occurred and be continuing or would occur immediately after
giving effect thereto, (ii) the Borrower may consummate the HAC Merger and the
Raytheon Merger; and (iii) the Borrower may consummate the transactions
contemplated by the Merger Agreement and the Separation Agreement.
SECTION 6.04. Subsidiary Indebtedness. Permit any Restricted Subsidiary to
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in
Schedule 6.04 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
(b) Indebtedness issued to the Borrower or any other Restricted
Subsidiary;
(c) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement;
(d) Indebtedness of any person that becomes a Restricted Subsidiary
after the date hereof; provided that such Indebtedness exists at the time
such person becomes a Restricted Subsidiary and is not created in
contemplation of or in connection with such Person becoming a Restricted
Subsidiary;
(e) Indebtedness as an account party in respect of trade letters of
credit;
(f) Indebtedness arising in connection with any Permitted Receivables
Program (to the extent the sale by the applicable Subsidiary of its
accounts receivable is deemed to be Indebtedness of such Subsidiary);
31
(g) performance, advance payment, warranty and bid guarantees and
other similar guarantees of payment (other than in respect of Indebtedness
for borrowed money) made by a Restricted Subsidiary in the ordinary course
of business; and
(h) other Indebtedness in an aggregate principal amount, when
aggregated with the amount of all Indebtedness secured by Liens permitted
by Section 6.01(m), not exceeding the greater of (i) $100,000,000 or (ii)
15% of Consolidated Net Tangible Assets as shown on the most recent
consolidated balance sheet delivered pursuant to Section 3.05 or 5.04(a) or
(b), as the case may be.
SECTION 6.05. Debt to Capitalization. (a) Permit Total Debt at any time up
to but excluding the date of the Raytheon Merger to exceed 60% of Total
Capitalization at such time.
(b) Permit Total Debt to exceed (i) 65% of Total Capitalization at any
time after the consummation of the Raytheon Merger to but excluding July 2,
1999, (ii) 60% of Total Capitalization from and including July 2, 1999 to but
excluding January 1, 2002, and (iii) 55% of Total Capitalization from and after
January 1, 2002.
SECTION 6.06. Amendment to Agreements. Amend (a) the Merger Agreement, (b)
the Separation Agreement or (c) the Tax Sharing Agreement in any manner adverse
to the interests of the Lenders.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with this Agreement or the borrowings hereunder, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in
connection with or pursuant to this Agreement, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any Loan
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;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in (b)
above) due under this Agreement, when and as the same shall become due and
payable, and such default shall continue unremedied for a period of three
Business Days following notice thereof;
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a), 5.05(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement
contained in this Agreement (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent or any Lender to the
Borrower;
(f) the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $50,000,000, when and as
the same shall become due and payable, or (ii) fail to make any payment
under any guarantee, if the aggregate amount of the guaranteed obligations
is in excess of $50,000,000, except to the extent the Borrower or such
Subsidiary is contesting in good faith the requirement to make such
payment, or (iii) fail to observe or perform any other term, covenant,
condition or agreement contained in any agreement or instrument evidencing
or governing any such Indebtedness if the effect of any failure referred to
in this clause (iii) is to cause such Indebtedness to become due prior to
its stated maturity;
32
(g) 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 Significant Subsidiary, or of a
substantial part of the property or assets of the Borrower or a Significant
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Significant Subsidiary or for a substantial part of
the property or assets of the Borrower or a Significant Subsidiary or (iii)
the winding-up or liquidation of the Borrower or any Significant
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 be entered;
(h) the Borrower or any Significant Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Significant Subsidiary or for a substantial part of
the property or assets of the Borrower or any Significant Subsidiary, (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 any action
for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $50,000,000 (to the extent not adequately covered by
insurance as to which the insurance company has acknowledged coverage in
writing) shall be rendered against the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Borrower or any Subsidiary to enforce any such
judgment;
(j) an ERISA Event shall have occurred that, in the reasonable
opinion of the Required Lenders, when taken together with all other such
ERISA Events that have occurred could reasonably be expected to result in a
Material Adverse Effect; or
(k) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein to the contrary notwithstanding; and in any
event with respect to the Borrower described in para graph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein to the contrary notwithstanding.
ARTICLE VIII
The Administrative Agent
In order to expedite the transactions contemplated by this Agreement, The
Chase Manhattan Bank is hereby appointed to act as Administrative Agent on
behalf of the Lenders. Each of the Lenders and each assignee of any such Lender
hereby irrevocably authorizes the Administrative Agent to take
33
such actions on behalf of such Lender or assignee and to exercise such powers as
are specifically delegated to the Administrative Agent by the terms and
provisions hereof, together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby expressly authorized by
the Lenders, without hereby limiting any implied authority, (a) to receive on
behalf of the Lenders all payments of principal of and interest on the Loans and
all other amounts due to the Lenders hereunder, and promptly to distribute to
each Lender its proper share of each payment so received; (b) to give notice on
behalf of each of the Lenders to the Borrower of any Event of Default specified
in this Agreement of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to each
Lender copies of all notices, financial statements and other materials delivered
by the Borrower pursuant to this Agreement as received by the Administrative
Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants or agreements contained in
this Agreement. The Administrative Agent shall not be responsible to the Lenders
for the due execution, genuineness, validity, enforceability or effectiveness of
this Agreement or any other instruments or agreements. The Administrative Agent
shall in all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Lenders (or, when
expressly required hereunder, all the Lenders) and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith 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 of or
delay in performance or breach by any Lender of any of its obligations hereunder
or to any Lender on account of the failure of or delay in performance or breach
by any other Lender or the Borrower of any of their respective obligations
hereunder or in connection herewith. The Administrative Agent may execute any
and all duties here under by or through agents or employees and shall be
entitled to rely upon the 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.
The Lenders hereby acknowledge that the Administrative Agent shall be under
no duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
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 Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, with the consent of the Borrower (which consent
shall not be unreasonably withheld), to appoint a successor. If no successor
shall have been so appointed by the Required Lenders 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 Lenders, appoint a successor Administrative Agent which shall be a bank
with an office in New York, New York, having a combined capital and surplus of
at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor bank, such
successor shall 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. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.05 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.
With respect to the Loans made by it hereunder, the Administrative Agent in
its individual capacity and not as Administrative Agent shall have the same
rights and powers as any other Lender 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 Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
34
Each Lender agrees (a) to reimburse the Administrative Agent, on demand, in
the amount of its pro rata share (based on its Commitment hereunder) of any
expenses incurred for the benefit of the Lenders by the Administrative Agent,
including counsel fees, that shall not have been reimbursed by the Borrower and
(b) to indemnify and hold harmless the Administrative Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it in its capacity as the Administrative Agent or any of
them in any way relating to or arising out of this Agreement or any action taken
or omitted by it or any of them under this Agreement, to the extent the same
shall not have been reimbursed by the Borrower, provided that no Lender shall be
liable to the Administrative Agent or any such other indemnified person for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or wilful misconduct of the Administrative Agent or any of its
directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder. Each Lender further acknowledges that the
Syndication Agent and the Documentation Agents have no duties or obligations as
such under this Agreement.
ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit hereunder and in
consideration therefor, the Guarantor hereby unconditionally and irrevocably
guarantees, as a primary obligor and not merely as a surety, the Obligations.
The Guarantor further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice to or further assent from it, and that it will
remain bound upon its Guarantee hereunder notwithstanding any such extension or
renewal of any Obligation.
The Guarantor waives presentment to, demand of payment from and protest to
the Borrower of any of the Obligations, and also waives notice of acceptance of
its obligations and notice of protest for nonpayment. The obligations of the
Guarantor hereunder shall not be affected by the failure of any Lender or the
Administrative Agent to assert any claim or demand or to enforce any right or
remedy against the Borrower under the provisions of this Agreement or otherwise,
or, except as specifically provided therein, by any rescission, waiver,
amendment or modification of any of the terms or provisions of this Agreement or
any other agreement.
The Guarantor further agrees that its Guarantee hereunder constitutes a
promise of payment when due and not merely of collection, and waives any right
to require that any resort be had by any Lender to any balance of any deposit
account or credit on the books of any Lender in favor of the Borrower or any
other person.
The obligations of the Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, and shall not
be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of the
Obligations, any impossibility in the performance of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
the Guarantor hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Administrative Agent or any Lender to assert any
claim or demand or to enforce any remedy under this Agreement or any other
agreement, by any waiver or modification in respect of any thereof, by any
default, failure or delay, wilful or otherwise, in the performance of the
Obligations, or by any other act or omission which may or might in any manner or
to any extent vary the risk of the Guarantor or otherwise operate as a discharge
of the Guarantor as a matter of law or equity.
The Guarantor further agrees that its obligations hereunder shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest
35
on any Obligation is rescinded or must otherwise be restored by the
Administrative Agent or any Lender upon the bankruptcy or reorganization of the
Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other right
which the Administrative Agent or any Lender may have at law or in equity
against the Guarantor by virtue hereof, upon the failure of the Borrower to pay
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Guarantor hereby
promises to and will, upon receipt of written demand by the Administrative
Agent, forthwith pay, or cause to be paid, in immediately available Dollars the
amount of such unpaid Obligation.
Upon payment by the Guarantor of any sums as provided above, all rights of
the Guarantor against the Borrower arising as a result thereof by way of
subrogation or otherwise shall in all respects be subordinated and junior in
right of payment to the prior indefeasible payment in full of all the
Obligations.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Unless otherwise specified herein, notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention of ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Telecopy No. (310)
568-7652); with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ at the same address;
(b) if to the Administrative Agent, to The Chase Manhattan Bank, One
Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase
Manhattan Bank, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
Mr. [ ] (Telecopy No. [ ]); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 10.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 10.01.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans, regardless of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any Fee or any other amount payable under this Agreement is outstanding
and unpaid and so long as the Commitments have not been terminated. The
provisions of Sections 2.14, 2.16, 2.20 and 10.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the invalidity
or unenforceability of any term or provision of this Agreement, or any
investigation made by or on behalf of the Administrative Agent or any Lender.
SECTION 10.03. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
36
SECTION 10.04. Successors and Assigns. (a) Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Borrower, the Administrative Agent or the
Lenders that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of such Lender, (x) the Borrower and the Administrative Agent must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld) and (y) the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $25,000,000 (or the entire
remaining amount of the assigning Lender's Commitment), unless such Lender is
making a substantially simultaneous assignment to the same assignee pursuant to
Section 10.04(b) of the 5-year Agreement in which case the aggregate of the
amount of the Commitment of the assigning Lender subject to the assignment under
this Agreement and the amount of the commitment of the assigning Lender subject
to the assignment under the 5-year Agreement shall not be less than $25,000,000,
(ii) the parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 and (iii) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 10.04, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five Business Days after
the execution thereof, (A) the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement and (B) the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.14, 2.16, 2.20 and 10.05, as well as to
any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, and the outstanding balances of its Revolving Loans and
Competitive Loans, in each case without giving effect to assignments thereof
which have not become effective, are as set forth in such Assignment and
Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto, or the financial condition of the Borrower or any
Subsidiary or the performance or observance by the Borrower or any Subsidiary of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and Acceptance; (iv) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the most recent financial statements referred to in Section 3.05 or
delivered pursuant to Section 5.04 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; (v) such assignee will independently and
without reliance upon the Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
37
Commitment of, and principal amount of the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The Borrower, the
Administrative Agent and the Lenders may treat each person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary, and such
entries in the Register shall be conclusive absent manifest error. The Register
shall be available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders and
the Borrower. No assignment shall be effective unless it has been recorded in
the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower or the
Administrative Agent 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);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender 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 benefit of the cost protection
provisions contained in Sections 2.14, 2.16 and 2.20 (and shall have the duty to
mitigate under Section 2.21) to the same extent as if they were Lenders and (iv)
the Borrower, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans and to approve any
amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans or increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, "Company Private" or
"Proprietary", each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of
such confidential information on terms no less restrictive than those applicable
to the Lenders pursuant to Section 10.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank without the consent of the
Borrower or the Administrative Agent to secure extensions of credit by such
Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to the Borrower by the assigning Lender
hereunder.
(i) The Borrower shall not assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent and each
Lender, and any attempted assignment without such consent shall be null and
void.
(j) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to Section 2.01 or
2.03(e), provided that (i) nothing herein shall constitute a commitment to make
any Loan by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the
38
Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender (and, if such Loan is a Competitive Loan, shall be deemed to
utilize the Commitments of all the Lenders) to the same extent, and as if, such
Loan were made by the Granting Lender. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the related Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 10.04 or in Section 10.16,
any SPC may (i) with notice to, but without the prior written consent of, the
Borrower or the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to its Granting
Lender or to any financial institutions providing liquidity and/or credit
facilities to or for the account of such SPC to fund the Loans made by such SPC
or to support the securities (if any) issued by such SPC to fund such Loans and
(ii) disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
SECTION 10.05. Expenses; Indemnity. (a) The Borrower agrees to pay all out-
of-pocket expenses incurred by the Agents in connection with the syndication of
the credit facilities provided for herein and the preparation and administration
of this Agreement or in connection with any amendments, modifications or waivers
of the provisions hereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by any Agent or any Lender in
connection with the enforcement or protection of its rights in connection with
this Agreement or in connection with the Loans made hereunder, including the
reasonable fees, charges and disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel
for the Agents, and, in connection with any such enforcement or protection, the
reasonable fees, charges and disbursements of any other counsel (including the
allocated charges of in-house counsel) for any Agent or any Lender. The Borrower
shall not be obligated to reimburse out-of-pocket legal expenses pursuant to the
preceding sentence for more than one law firm for the Agents incurred in
connection with the preparation of this Agreement or in connection with any
particular amendment, modification or waiver of the provisions hereof.
(b) The Borrower agrees to indemnify each Agent and each Lender, each
Affiliate of any of the foregoing persons and each of their respective
directors, officers, employees and agents (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated thereby, the performance by the parties thereto of their respective
obligations thereunder or the consummation of the Transactions and the other
transactions contemplated hereby, (ii) the use of the proceeds of the Loans or
(iii) any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses result from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 10.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the invalidity
or unenforceability of any term or provision of this Agreement, or any
investigation made by or on behalf of any Agent or any Lender. All amounts due
under this Section 10.05 shall be payable on written demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
39
SECTION 10.07. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender 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 Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on any Loan or the payment of any Facility Fee, or waive or excuse any such
payment or any part thereof, or decrease the rate of interest on any Loan,
without the prior written consent of each Lender affected thereby, (ii) change
or extend the Commitment or decrease the Facility Fees of any Lender without the
prior written consent of such Lender, (iii) reduce or terminate the obligations
of the Guarantor or (iv) amend or modify the provisions of Section 2.17, the
provisions of Section 10.04(i), the provisions of this Section or the definition
of the term "Required Lenders", without the prior written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.10. Entire Agreement. This Agreement and the Fee Letter
constitute the entire contract among the parties relative to the subject matter
hereof. Any other previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
SECTION 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10.11.
SECTION 10.12. Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and
40
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 10.13. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 10.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually signed counterpart of
this Agreement.
SECTION 10.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices 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.
SECTION 10.16. Confidentiality. The Administrative Agent and each of the
Lenders agrees to keep confidential (and to use its best efforts to cause its
respective agents and representatives to keep confidential) the Information (as
defined below) and all copies thereof, extracts therefrom and analyses or other
materials based thereon, except that the Administrative Agent or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority or examining authority, (c) to the extent otherwise required by
applicable laws and regulations or by any subpoena or similar legal process, (d)
in connection with any suit, action or proceeding relating to the enforcement of
its rights hereunder, (e) to the extent permitted by Section 10.04(g), or (f) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Agreement or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" shall
mean all financial statements, certificates, reports, agreements and information
(including all analyses, compilations and studies prepared by the Administrative
Agent or any Lender based on any of the foregoing) that are received from the
Borrower or any Subsidiary and related to the Borrower, any Subsidiary or any
employee, customer or supplier of the Borrower, other than any of the foregoing
that were available to the Administrative Agent or any Lender on a
nonconfidential
41
basis prior to its disclosure thereto by the Borrower, and which are in the case
of Information provided after the date hereof, clearly identified at the time of
delivery as confidential, "Company Private" or "Proprietary". The provisions of
this Section 10.16 shall remain operative and in full force and effect
regardless of the expiration and term of this 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.
HE HOLDINGS, INC.
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ AIRCRAFT COMPANY, as
Guarantor
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
by
/s/ B. ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
B. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Managing Director
CHASE SECURITIES, INC., as Arranger,
by
/s/ B. ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
B. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Managing Director
BANCAMERICA SECURITIES, INC., as
Arranger and as Syndication Agent,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
42
CITICORP USA, INC., individually and as
Documentation Agent,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, individually and as
Documentation Agent,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
CREDIT SUISSE FIRST BOSTON,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Associate
ABN AMRO BANK N.V.,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Group Vice President
ARAB BANK PLC, GRAND CAYMAN
BRANCH,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EVP & Regional Manager
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED,
by /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ BRANCH,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
BANCA NAZIONALE DEL LAVORO S.P.A
NEW YORK BRANCH,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
First Vice President
by /s/ ▇▇▇▇▇▇ ▇. Medida
------------------------------
▇▇▇▇▇▇ ▇. Medida
Vice President
BANCA POPOLARE DI MILANO,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President &
General Manager
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
First Vice President
BANKBOSTON N.A.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President & Manager
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇. Vangaever
----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇. Vangaever
Senior Vice President
Credit
BANK OF MONTREAL,
by
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇
---------------------------
▇. ▇. ▇▇▇▇▇▇▇▇
Director
THE BANK OF NEW YORK,
by
/s/ ▇▇▇▇▇ ▇. Judge
---------------------------
▇▇▇▇▇ ▇. Judge
Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇ ▇▇▇▇▇▇▇▇
Authorized Signatory
BANKERS TRUST COMPANY,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
BANQUE FRANCAISE DU COMMERCE EXTERIEUR,
by
/s/ ▇▇▇▇▇▇ ▇. van Tulder
---------------------------
▇▇▇▇▇▇ ▇. van Tulder
Vice President And Manager
Multinational Group
45
BANQUE NATIONALE DE PARIS,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
Senior Vice President
Corporate Banking Division
BANQUE PARIBAS,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Vice President
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Group Vice President
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
Managing, Lending Division
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
BAYERISCHE VEREINSBANK AG, NEW
YORK BRANCH,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Vice President
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Treasurer
46
CITIBANK, N.A.,
by /s/ Name
---------------------------
Name
Title
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Treasurer
CORESTATES BANK, N.A.,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
NEW YORK BRANCH,
by /s/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇ ▇. ▇▇▇▇▇
Vice President
DEN DANSKE BANK AKTIESELSKAB,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
by /s/ ▇▇▇▇ ▇'▇▇▇▇▇
---------------------------
▇▇▇▇ ▇'▇▇▇▇▇
Vice President
47
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES,
by /s/ Andreas Neumeter
--------------------------------
Andreas Neumeter
Vice President
by /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇
Director
THE FIRST NATIONAL BANK OF CHICAGO,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Acting Vice President
THE FIRST NATIONAL BANK OF MARYLAND,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
FIRST UNION BANK OF NORTH CAROLINA,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
FLEET NATIONAL BANK,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
FUJI BANK, LIMITED,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Joint General Manager
48
GULF INTERNATIONAL BANK B.S.C.,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President
by /s/ Abdel-Fattah Tahoun
--------------------------------
Abdel-Fattah Tahoun
Senior Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
First Vice President
KREDIETBANK N.V., GRAND CAYMAN
BRANCH,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Vice President
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Deputy General Manager
49
MELLON BANK, N.A.,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Vice President
▇▇▇▇▇▇ BANK LTD, NEW YORK BRANCH,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
by /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
BANK OF TOKYO MITSUBISHI LIMITED,
by /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Attorney-In-Fact
NATIONAL BANK OF KUWAIT S.A.K.,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Executive Manager
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Manager
NATIONSBANK, N.A.,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
50
NORTHERN TRUST COMPANY,
by /s/ ▇▇▇▇▇ ▇. Minhart
--------------------------------
▇▇▇▇▇ ▇. Minhart
Vice President
SAKURA BANK, LIMITED,
NEW YORK BRANCH,
by /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
THE SANWA BANK LIMITED,
NEW YORK BRANCH,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇
Vice President
and Area Manager
SOCIETE GENERALE,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
STATE STREET BANK AND TRUST
COMPANY,
by /s/ L. ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
L. ▇▇▇ ▇▇▇▇▇▇▇
Vice President
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Joint General Manager
SUMMIT BANK,
by /s/ Arty ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Arty ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
51
SWISS BANK CORPORATION, NEW YORK BRANCH,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Credit Risk Management
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Banking Finance Support, N.A.
TORONTO DOMINION (NEW YORK), INC.,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
THE TOYO TRUST & BANKING CO., LTD.,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
UNION BANK OF SWITZERLAND, NEW
YORK BRANCH,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
52
WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Senior Analyst
WESTPAC BANKING CORPORATION,
by /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇
Assistant Vice President
53
CANADIAN IMPERIAL BANK OF
COMMERCE,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Director