EXHIBIT 10.12
CONFORMED COPY
AS AMENDED
THROUGH 3/21/97
U.S. $150,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 1, 1995
Among
CYTEC INDUSTRIES INC.,
as Borrower,
and
THE BANKS NAMED HEREIN,
as Banks,
and
CITIBANK, N.A.,
as Agent
T A B L E O F C O N T E N T S
Section Page
------- ----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms................................................. 1
1.02. Computation of Time Periods........................................... 19
1.03. Accounting Terms...................................................... 19
1.04. Currency Equivalents Generally........................................ 19
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Revolving Advances; Redemption Borrowings......................... 20
2.02. Making the Revolving Advances......................................... 21
2.03. Fees.................................................................. 23
2.04. Reduction or Termination of the Commitments........................... 23
2.05. Repayment of Revolving Advances....................................... 24
2.06. Interest on Revolving Advances........................................ 24
2.07. Interest Rate Determination........................................... 25
2.08. Voluntary Conversion of Revolving Advances............................ 25
2.09. Prepayments of Revolving Advances..................................... 26
2.10. Increased Costs....................................................... 27
2.11. Illegality............................................................ 28
2.12. Payments and Computations............................................. 29
2.13. Taxes................................................................. 30
2.14. Sharing of Payments, Etc.............................................. 32
2.15. The Competitive Bid Advances.......................................... 33
2.16. Voluntary Redenomination of Revolving Advances........................ 37
2.17. Currency Equivalents.................................................. 38
2.18. Use of Proceeds....................................................... 39
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.15....... 39
3.02. Additional Conditions Precedent to Effectiveness...................... 41
3.03. Conditions Precedent to Each Revolving Borrowing...................... 41
ii
3.04. Conditions Precedent to Each Redemption Borrowing..................... 41
3.05. Conditions Precedent to Each Competitive Bid Borrowing................ 42
3.06. Determinations Under Sections 3.01 and 3.02........................... 42
3.07. Notice of Effective Date.............................................. 43
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower........................ 43
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants................................................. 46
5.02. Negative Covenants.................................................... 51
5.03. Financial Covenants................................................... 58
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default..................................................... 59
ARTICLE VII
THE AGENT
7.01. Authorization and Action.............................................. 62
7.02. Agent's Reliance, Etc................................................. 63
7.03. Citibank and Affiliates............................................... 63
7.04. Lender Credit Decision................................................ 63
7.05. Indemnification....................................................... 64
7.06. Successor Agent....................................................... 64
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc....................................................... 65
iii
8.02. Notices, Etc.......................................................... 65
8.03. No Waiver; Remedies................................................... 66
8.04. Costs and Expenses.................................................... 66
8.05. Right of Setoff....................................................... 67
8.06. Binding Effect........................................................ 68
8.07. Assignments, Designations and Participations.......................... 68
8.08. Confidentiality....................................................... 72
8.09. Governing Law......................................................... 72
8.10. Execution in Counterparts............................................. 73
8.11. Jurisdiction, Etc..................................................... 73
8.12. Judgment.............................................................. 73
8.13. Effective Date Assignments; Etc....................................... 74
8.14. Waiver of Jury Trial.................................................. 75
iv
Schedules
---------
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 4.01(h) - Environmental Laws Disclosure
Schedule 4.01(i) - Environmental Investigation and Clean-up Properties
Schedule 4.01(j) - Hazardous Materials
Schedule 5.01(k) - Transactions with Affiliates
Schedule 5.02(a) - Existing Liens
Schedule 5.02(b) - Existing Debt
Schedule 8.13 - Existing Lenders, Existing Commitments and Existing
Advances
Exhibits
--------
Exhibit A-1 - Form of Revolving Promissory Note
Exhibit A-2 - Form of Competitive Bid Promissory Note
Exhibit B-1 - Form of Notice of Revolving Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Notice of Redenomination
Exhibit F-1 - Form of Opinion of Special New York Counsel to the
Borrower
Exhibit F-2 - Form of Opinion of General Counsel of the Borrower
The Company agrees to furnish supplementally to the Commission the
foregoing schedules and exhibits upon request.
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 1, 1995
CYTEC INDUSTRIES INC., a Delaware corporation (the "Borrower"),
the banks (the "Banks") listed on the signature pages hereof and CITIBANK, N.A.
("Citibank"), as agent (the "Agent") for the Lenders hereunder, agree as
follows:
PRELIMINARY STATEMENTS. The Borrower entered into a Credit
Agreement dated as of December 17, 1993 (as amended by Amendment No. 1 thereto
dated June 30, 1994, Amendment No. 2 thereto dated September 19, 1994 and
Amendment No. 3 thereto dated May 17, 1995, the "Original Credit Agreement")
with certain lenders parties thereto (the "Existing Lenders") and Citibank, as
agent for the Existing Lenders. The Borrower has requested that the Banks and
the Agent amend and restate the Original Credit Agreement as hereinafter set
forth, and the Banks and the Agent have agreed to do so.
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree that as of the Effective Date, the
Original Credit Agreement is hereby amended and restated as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Advance or a Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to direct
or cause the direction of the
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management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise, or, in the case of an Affiliate
of the Borrower, to vote 10% or more of the Voting Stock of such Person.
"Alternative Currency" means lawful money of Great Britain,
lawful money of the Netherlands or lawful money of Japan, or any other
lawful currency other than Dollars that is freely transferable and
convertible into Dollars as the Borrower, with the consent of the
Required Lenders and the Agent, shall designate.
"American Home Products" means American Home Products
Corporation, a Delaware corporation.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurocurrency Lending Office in the case of a
Eurocurrency Rate Advance and, in the case of a Competitive Bid Advance,
the office of such Lender notified by such Lender to the Agent as its
Applicable Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means (a) for each Revolving Borrowing (other
than any Redemption Borrowing), a percentage per annum determined by
reference to the Leverage Ratio and the Fixed Charge Coverage Ratio as
set forth below:
Applicable Margin Applicable Margin
Leverage Fixed Charge for Eurocurrency for Base
Level Ratio Coverage Ratio Rate Advances Rate Advances
----- ----- -------------- ------------- -------------
1 less than or equal to 0.40:1 greater than or equal to 3.00:1 0.250% 0%
2 greater than 0.40:1 greater than or equal to 3.00:1 0.300% 0%
and less than or
equal to 0.50:1
3 greater than 0.50:1 greater than or equal to 3.00:1 0.375% 0%
and less than or
equal to 0.55:1
4 greater than 0.55:1 less than 3.00:1 0.875% 0%
and (b) for each Redemption Borrowing, the Applicable Margin in effect
for Revolving Borrowings under clause (a) plus 0.25% per annum. The
Applicable Margin for each Eurocurrency Rate Advance shall be determined
by reference to the ratios in effect on the first day of each Interest
Period for such Advance; provided, however, that no change in the
Applicable Margin shall be effective until three Business Days after the
date on which the Agent receives financial statements pursuant to
Section 5.01(l)(i) or (ii), or a certificate of the chief financial
officer of the Borrower, demonstrating such ratios and if the
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Leverage Ratio and the Fixed Charge Coverage Ratio shall fall within
different levels, the Applicable Margin shall be based upon the level
that would result in a higher Applicable Margin.
"Applicable Percentage" means a percentage per annum determined
by reference to the Leverage Ratio and the Fixed Charge Coverage Ratio
as set forth below:
Leverage Fixed Charge Applicable
Level Ratio Coverage Ratio Percentage
----- ----- -------------- ----------
1 less than or equal to greater than or equal to 3.00:1 0.175%
0.40:1
2 greater than 0.40:1 greater than or equal to 3.00:1 0.200%
and less than or
equal to 0.50:1
3 greater than 0.50:1 greater than or equal to 3.00:1 0.250%
and less than or
equal to 0.55:1
4 greater than 0.55:1 less than 3.00:1 0.500%
provided, however, that no change in the Applicable Percentage shall be
effective until three Business Days after the date on which the Agent
receives financial statements pursuant to Section 5.01(l)(i) or (ii), or
a certificate of the chief financial officer of the Borrower,
demonstrating such ratios and if the Leverage Ratio and the Fixed Charge
Coverage Ratio shall fall within different levels, the Applicable
Percentage shall be based upon the level that would result in the higher
Applicable Percentage.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of
(i) 1/2 of 1% per annum, plus (ii) the rate obtained by dividing
(A) the latest three-week moving average of secondary market
morning offering rates in the United States for three-month
certificates of deposit of major United States money market
banks, such three-week moving
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average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on
the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized
standing selected by Citibank, by (B) a percentage equal to 100%
minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Advance denominated in
Dollars which bears interest as provided in Section 2.06(a)(i).
"Borrowing" means a Revolving Borrowing or a Competitive Bid
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurocurrency Rate Advances, on which
dealings are carried on in the London interbank market and banks are
open for business in London and in the country of issue of the currency
of such Eurocurrency Rate Advance.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Commitment" has the meaning specified in Section 2.01(a)(ii).
5
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.15 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.15.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in Section
2.01(a)(ii).
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender on a confidential basis, but does
not include any such information that is or becomes generally available
to the public or that is or becomes available to the Agent or such
Lender from a source other than the Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of all or any portion of Revolving Advances of one Type into
Revolving Advances of the other Type, or in the case of Eurocurrency
Rate Advances, into Revolving Advances with a different Interest Period,
pursuant to Section 2.07, 2.08 or 2.11.
"Cyanamid" means American Cyanamid Company, a Maine corporation
and a wholly owned Subsidiary of American Home Products.
"Cyanamid Preferred Stock" means capital stock issued by the
Borrower to Cyanamid that is entitled to a preference or priority over
any other capital stock issued by the Borrower upon any distribution of
the Borrower's assets, whether by dividend or upon liquidation.
"CYRO" means CYRO Industries, a partnership, and its successors
and assigns, for so long as the Borrower or any of its Subsidiaries
shall have an equity interest therein.
"Debt" of any Person means (a) all indebtedness of such Person
for borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or
6
services (other than trade payables not overdue by more than 60 days
incurred in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property), (e)
all obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases
("Capitalized Leases"), valued at the amount that is or should be
capitalized as required by GAAP, (f) all obligations, contingent or
otherwise, of such Person under acceptance, letter of credit or similar
facilities, (g) all Debt of others referred to in clauses (a) through
(f) above guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to assure a creditor against loss, and (h) all Debt of others
referred to in clauses (a) through (f) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Debt,
provided, however, that the amount of any Debt included in this clause
(h) shall be limited to the greater of the book value and the fair
market value of the property on which such Lien is granted.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial
paper rated at least "Prime-1" (or the then equivalent grade) by ▇▇▇▇▇'▇
or "A-1" (or the then equivalent grade) by S&P that, in the case of
either clause (a) or (b), (i) is organized under the laws of the United
States or any State thereof, (ii) shall have become a party hereto
pursuant to Section 8.07(d), (e) and (f) and (iii) is not otherwise a
Lender.
7
"Designation Agreement " means a designation agreement entered
into by a Lender (other than a Designated Bidder) and a Designated
Bidder, and accepted by the Agent, in substantially the form of Exhibit
D hereto.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Dollars" and the "$" sign each means lawful money of the United
States.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the Borrower
and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense (net of all payments made or received by
the Borrower in respect of Hedge Agreements to which it is a party), (b)
income tax expense, (c) depreciation expense, (d) amortization expense,
(e) other post-retirement benefits expense and (f) extraordinary or
non-recurring losses included in determining such net income (or net
loss), less the sum of (i) accrued interest income not received in cash
and (ii) extraordinary or non-recurring gains included in determining
such net income (or net loss), in each case determined in accordance
with GAAP for such period.
"Effective Date" means the first date on which the conditions set
forth in Sections 3.01 and 3.02 have been fulfilled.
"Eligible Assignee" means (i) a Lender, (ii) an Affiliate of a
Lender and (iii) any other Person approved by the Agent and the
Borrower, such approval not to be unreasonably withheld.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
8
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to the
environment, health, safety or Hazardous Materials.
"Environmental Permit" means any permit, approval, license or
other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event has
been waived by the PBGC or the penalty with respect to a failure to
provide notice has been waived, or (ii) the requirements of subsection
(1) of Section 4043(b) of ERISA (without regard to subsection (2) of
such Section) are met with respect to a contributing sponsor, as defined
in Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the provision by the administrator of any Plan of
a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (c) the cessation of
operations at a facility of the Borrower or any of its ERISA Affiliates
in the circumstances described in Section 4062(e) of ERISA; (d) the
withdrawal by the Borrower or any of its ERISA Affiliates from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (e) the failure by
the Borrower or any of its ERISA Affiliates to make a payment to a Plan
required under Section 302(f)(1) of ERISA; (f) the adoption of an
amendment to a Plan requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or (g) the institution by the PBGC of
proceedings to terminate a Plan, pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of
ERISA that could constitute grounds for the termination of, or the
appointment of a trustee to administer, a Plan, provided, however, that
an event or condition described in Section 4042(a)(4) of ERISA shall be
an ERISA Event only if the Borrower or any ERISA Affiliate knows or has
reason to know thereof.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
9
"Eurocurrency Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Borrower and
the Agent.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum at which deposits in Dollars
or in the relevant Alternative Currency are offered by the principal
office of Citibank in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal
to Citibank's Eurocurrency Rate Advance comprising part of such
Revolving Borrowing to be outstanding during such Interest Period and
for a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurocurrency Rate Reserve Percentage for such Interest
Period.
"Eurocurrency Rate Advance" means a Revolving Advance denominated
in Dollars or in an Alternative Currency which bears interest as
provided in Section 2.06(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period
for all Eurocurrency Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurocurrency Rate Advances or
LIBO Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Executive Committee" means the committee designated from time to
time as such by the Board of Directors of the Borrower and composed, as
of the date hereof, of the chief executive officer, the chief financial
officer and the two executive vice presidents of the Borrower.
"Existing Advance" means, for each Existing Lender, all of such
Existing Lender's rights in and to, and all of its obligations under,
the Advances (as defined in the Original
10
Credit Agreement) owing to it under the Original Credit Agreement, the
aggregate amount of which for each Existing Lender is set forth opposite
its name on Schedule 8.13 hereto.
"Existing Commitment" means, for each Existing Lender, all of
such Existing Lender's rights in and to, and all of its obligations
under, the Commitment (as defined in the Original Credit Agreement) held
by it under the Original Credit Agreement, the aggregate amount of which
for each Existing Lender is set forth opposite its name on Schedule 8.13
hereto.
"Existing Lenders" has the meaning specified in the Preliminary
Statements.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Charge Coverage Ratio" means, at any time, for any period,
the ratio of (x) the sum of (i) Consolidated EBITDA of the Borrower and
its Subsidiaries, (ii) cash expenditures for environmental remediation
and (iii) cash expenditures for benefit payments for other
post-retirement benefits made by the Borrower directly to retirees of
the Borrower or any of its Subsidiaries or to any VEBA (to the extent
not expensed during such period) to (y) the sum of (i) cash interest
expense, (ii) cash expenditures for environmental remediation, (iii)
cash expenditures for benefit payments for other post-retirement
benefits made by the Borrower directly to retirees of the Borrower or
any of its Subsidiaries or to any VEBA and (iv) dividends accrued or
paid on the Series A Preferred Stock, the Series B Preferred Stock and
the Series C Preferred Stock, in each case, during such period.
"Fixed Rate Advance" has the meaning specified in Section
2.15(a)(i), which Advance shall be denominated in Dollars.
"Foreign Currency" means lawful currency other than Dollars which
is freely transferable and convertible into Dollars.
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such Person
that by its terms matures more than one
11
year after the date of its creation or matures within one year from such
date but is renewable or extendible, at the option of such Person, to a
date more than one year after such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year after such date,
including, without limitation, all amounts of Funded Debt of such Person
required to be paid or prepaid within one year after the date of its
creation, the current portion of all long-term Debt and all short-term
Debt for borrowed money.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means petroleum and petroleum products,
radioactive materials, asbestos-containing materials, radon gas and any
other chemicals, materials or substances designated, classified or
regulated as being "hazardous" or "toxic", or words of similar import,
under any federal, state, local or foreign statute, law, ordinance,
rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements (other than non-financial commodities contracts).
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Borrowing and each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurocurrency Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance into
such Eurocurrency Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurocurrency Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon
notice received by the Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period
which ends after the Termination Date;
12
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Borrowing or for LIBO Rate Advances comprising part of the same
Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
and
(iv) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock,
warrants, rights, options, obligations or other securities of such
Person, any capital contribution to such Person or any other investment
in such Person, including, without limitation, any arrangement pursuant
to which the investor incurs Debt of the types referred to in clauses
(g) and (h) of the definition of "Debt" in respect of such Person.
"Lenders" means the Banks listed on the signature pages hereof
and each Person that shall become a party hereto pursuant to Section
8.07(a), (b) and (c) and, except when used in reference to a Revolving
Advance, a Revolving Borrowing, a Revolving Note, a Commitment or a
related term, each Designated Bidder.
"Leverage Ratio" means, at any time, the ratio of (a) Total Debt
to (b) the sum of (i) Total Debt plus (ii) gross long-term liabilities
incurred in connection with "expected post retirement benefit
obligations" within the meaning of Statement of Financial Accounting
Standards No. 106 plus (iii) shareholders' equity of the Borrower, in
each case, of the Borrower and its Subsidiaries as of the last day of
the immediately preceding fiscal quarter of the Borrower as determined
on a Consolidated basis in accordance with GAAP.
13
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) the rate per annum at which deposits in Dollars are offered by the
principal office of Citibank in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to the amount that would be Citibank's ratable share of such
Borrowing if such Borrowing were to be a Revolving Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurocurrency
Rate Reserve Percentage for such Interest Period.
"LIBO Rate Advance" has the meaning specified in Section
2.15(a)(i), which Advance shall be denominated in Dollars.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Marketable Securities" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens and, in the case of clauses (a), (b), (c) and (f) below, having a
maturity of not greater than 180 days from the date of acquisition
thereof and, in the case of clause (g) below, having a maturity of not
greater than, or an option on the part of the holder thereof to resell
such investments within, 180 days from the date of acquisition thereof:
(a) obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the Government of the United States or of the
Government of the United Kingdom, Canada or Australia, (b) certificates
of deposit or bankers acceptances of or time deposits with any
commercial bank (or any foreign branch thereof) that is a Lender or is
organized under the laws of the United States or any State thereof or
Austria, Canada, Australia, countries in the European Economic
Community, Norway, New Zealand, Switzerland, Sweden or Japan and has
assets of at least $1 billion (or the equivalent thereof) in an
aggregate amount invested with any such bank not to exceed 1/4 of 1% of
the assets of such bank, (c) commercial paper in an aggregate amount of
no more than $10,000,000 per issuer outstanding at any time, issued by
any corporation organized under the laws of any State of the United
States and rated at least "Prime-1" (or the then equivalent grade) by
Moody's or "A-1" (or the then equivalent grade) by S&P or master notes
or money market notes of such issuers, (d) repurchase agreements with a
term of not more than seven days and fully collateralized by securities
of the Government of the United States entered into with any Lender or
any other bank meeting the qualifications specified in clause (b) above
or with securities dealers of recognized national standing, (e)
14
institutional money market funds sponsored by securities dealers of
recognized national standing which invest in short term liquid
investments, (f) Euronotes and Euro-commercial paper of the countries
referred to in clause (b) above and of any corporation the commercial
paper of which is rated the equivalent of at least "Prime-1" (or the
then equivalent grade) by Moody's or "A-1" (or the then equivalent
grade) by S&P, or (g) adjustable rate preferred and money market
preferred investments of issuers the obligations of which are rated at
least "Aa" (or the then equivalent grade) by Moody's or "AA" (or the
then equivalent grade) by S&P.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations, properties
or prospects of the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the business, condition (financial or otherwise), operations, properties
or prospects of the Borrower and its Subsidiaries taken as a whole, (b)
the rights and remedies of the Agent or any Lender under this Agreement
or any Note or (c) the ability of the Borrower to perform its
obligations under this Agreement or any Note.
"Material Subsidiary" means, at any time, a Subsidiary of the
Borrower having at least 1% of the total Consolidated assets of the
Borrower and its Subsidiaries (determined as of the last day of the most
recent fiscal quarter of the Borrower) or at least 2% of the total
Consolidated revenues of the Borrower and its Subsidiaries for the
twelve month period ending on the last day of the most recent fiscal
quarter of the Borrower.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any of its ERISA
Affiliates (other than one considered an ERISA Affiliate only pursuant
to subsection (m) or (o) of Section 414 of the Internal Revenue Code) is
making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any of its ERISA Affiliates and at least one Person
other than the Borrower and its ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
15
"1994 10K" means the Borrower's annual report for its 1994 fiscal
year on Form 10K filed with the Securities and Exchange Commission on
March 29, 1995.
"Note" means a Revolving Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified
in Section 2.15(a).
"Notice of Revolving Borrowing" has the meaning specified in
Section 2.02(a).
"Original Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Original Currency" has the meaning specified in Section 8.12.
"Other Currency" has the meaning specified in Section 8.12.
"Payment Office" means, for any Alternative Currency, such
office of Citibank as shall be from time to time selected by the Agent
and notified by the Agent to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor.
"Permitted Liens" means such of the following as to which (i) (A)
no enforcement or collection proceeding shall have been commenced or, if
any such proceeding has been commenced, it is being contested in good
faith and by proper proceedings and as to which adequate reserves are
being maintained and (B) no execution, levy or foreclosure proceeding
shall have been commenced or, if any such proceeding has been commenced,
it is being contested in good faith, by proper proceedings, adequate
reserves with respect thereto are being maintained and there shall not
be any period of ten consecutive days during which a stay shall not be
in effect or (ii) the amount secured thereby does not exceed,
individually or in the aggregate, $2,000,000 (or the equivalent thereof
in any Alternative Currency): (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's, warehousemen's and
repairmen's Liens and other similar Liens arising in the ordinary course
of business securing obligations that are not overdue for a period of
more than 30 days other than by reason of a contest as permitted above;
(c) pledges or deposits to secure obligations under workers'
compensation or unemployment insurance laws or other social security
laws and legislation or to secure public or statutory obligations; (d)
easements, zoning restrictions, rights of way and other encumbrances on
title to real property that do not render title to
16
the property encumbered thereby unmarketable or materially adversely
affect the use of such property for its present purposes; and (e)
pledges or deposits to secure the performance of bids, trade contracts,
leases (other than Capitalized Leases), surety or appeal bonds or other
obligations of a like nature incurred in the ordinary course of
business.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Preferred Stock" means, with respect to any corporation, capital
stock issued by such corporation that is entitled to a preference or
priority over any other capital stock issued by such corporation upon
any distribution of such corporation's assets, whether by dividend or
upon liquidation.
"Redemption Borrowing" has the meaning specified in Section
2.01(b).
"Redenominate", "Redenomination" and "Redenominated" each refers
to the redenomination of each Revolving Advance comprising part of the
same Revolving Borrowing from Dollars into an Alternative Currency or
from an Alternative Currency into Dollars or another Alternative
Currency pursuant to Section 2.16.
"Register" has the meaning specified in Section 8.07(g).
"Required Lenders" means at any time Lenders owed at least 51% of
the then aggregate unpaid principal amount of the Revolving Advances
owing to Lenders or, if no such principal amount is then outstanding,
Lenders having at least 51% of the Commitments (provided that, for
purposes hereof, neither the Borrower, nor any of its Affiliates, if a
Lender, shall be included in (i) the Lenders holding such amount of the
Revolving Advances or having such amount of the Commitments or (ii)
determining the aggregate unpaid principal amount of the Revolving
Advances or the total Commitments).
"Revolving Advance" means an advance by a Lender to the Borrower
as part of a Revolving Borrowing, and refers to a Base Rate Advance or a
Eurocurrency Rate Advance (each of which shall be a "Type" of Revolving
Advance).
"Revolving Borrowing" means a borrowing consisting of
simultaneous Revolving Advances of the same Type made by each of the
Lenders pursuant to Section 2.01(a)(ii).
17
"Revolving Note" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Advances made by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.
"Series A Certificate" means the Certificate of Designations,
Preferences and Rights of Series A Cumulative Adjustable Preferred Stock
of the Borrower dated March 15, 1994, as in effect on the date hereof.
"Series A Preferred Stock" means the capital stock of the
Borrower issued in accordance with the terms of the Series A
Certificate.
"Series B Certificate" means the Certificate of Designations,
Preferences and Rights of Series B Cumulative Convertible Preferred
Stock of the Borrower dated March 15, 1994, as in effect on the date
hereof.
"Series B Preferred Stock" means the capital stock of the
Borrower issued in accordance with the terms of the Series B
Certificate.
"Series C Certificate" means the Certificate of Designations,
Preferences and Rights of Series C Cumulative Preferred Stock of the
Borrower dated December 17, 1993, as in effect on the date hereof.
"Series C Preferred Stock" means the capital stock of the
Borrower issued in accordance with the terms of the Series C
Certificate.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any of its ERISA Affiliates and no Person other than the
Borrower and its ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"Spin-Off" means the dividend consisting of all of the
outstanding common stock of the Borrower made by Cyanamid to its
stockholders.
"Subsidiary" of any Person means any corporation, limited
liability company, partnership, joint venture, trust or estate (i) that
is, in accordance with GAAP, Consolidated in the Consolidated financial
statements of the Borrower or (ii) of which (or
18
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such
trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Termination Date" means the earlier of June 1, 2000 and the date
of termination in whole of the Commitments pursuant to Section 2.04 or
6.01.
"Total Debt" means, at any time, the sum of, without duplication
(a) Preferred Stock of the Borrower plus (b) Funded Debt plus (c)
long-term liabilities (other than Funded Debt and long-term liabilities
in respect of benefit payments for other post-retirement benefits) plus
(d) Debt of the Borrower or any of its Subsidiaries of the type
described in clause (g) or (h) of the definition of "Debt" relating to
Debt of Persons that are not Subsidiaries of the Borrower in which the
Borrower or any of its Subsidiaries has an equity interest or of direct
or indirect unconsolidated Subsidiaries of the Borrower, in each case,
of the Borrower and its Subsidiaries as of the last day of the
immediately preceding fiscal quarter of the Borrower as determined on a
Consolidated basis in accordance with GAAP.
"United States" and "U.S." each means United States of America.
"VEBA" means any trust organized by the Borrower as a voluntary
employee benefits association.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
19
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP"), provided,
however, that, if (a) any changes in accounting principles from those used in
the preparation of the Borrower's financial statements dated December 31, 1994
are required by the rules, regulations, pronouncements or opinions of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and are adopted by the Borrower with the agreement of its independent certified
public accountants and (b) such changes would affect (or result in a change in
the method of calculation of) any of the covenants set forth in Section 5.02 or
5.03, the parties hereto agree to enter into good-faith negotiations in order to
amend such provisions, in a manner satisfactory to the Required Lenders, to
equitably reflect such changes with the intention that the criteria for
evaluating compliance with such covenants by the Borrower shall be the same
after such changes as if such changes had not been made; provided further,
however, that until the amendment of such provisions shall be agreed upon by the
Borrower and the Required Lenders, for purposes of determining compliance with
any covenant set forth in Sections 5.02 and 5.03, such terms shall be construed
in accordance with GAAP as in effect on the date of this Agreement applied on a
basis consistent with the application used in preparing the Borrower's audited
financial statements referred to in Section 4.01(e).
SECTION 1.04. Currency Equivalents Generally. For all purposes of
this Agreement other than Article II, the equivalent in any Alternative Currency
or any Foreign Currency of an amount in Dollars shall be determined at the rate
of exchange quoted by Citibank in New York City, at 9:00 A.M. (New York City
time) on the date of determination, to prime banks in New York City for the spot
purchase in the New York foreign exchange market of such amount of Dollars with
such Alternative Currency or such Foreign Currency, as the case may be.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Advances; Redemption Borrowings.
(a) (i) Effective as of the Effective Date, each Existing Lender hereby sells
and assigns all of its rights in and to, and all of its obligations under, each
Existing Advance owing to it and the Existing Commitment held by it to the Banks
and each Bank hereby purchases and assumes, pro rata based on such Bank's
Commitment, all of the Existing Lenders' rights in and to, and obligations
under, the Existing Advances and the Existing Commitments, the amounts of which
are set forth opposite its name on Schedule 8.13 hereto.
20
(ii) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Advances to the Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount (determined in Dollars) not to exceed at
any time outstanding the Dollar amount set forth opposite such Lender's name on
the signature pages hereof or, if such Lender has entered into any Assignment
and Acceptance, set forth for such Lender in the Register maintained by the
Agent pursuant to Section 8.07(g), as such amount may be reduced pursuant to
Section 2.04 (such Lender's "Commitment"), provided that the aggregate amount of
the Commitments of the Lenders shall be deemed used from time to time to the
extent of the aggregate amount of the Competitive Bid Advances then outstanding
and such deemed use of the aggregate amount of the Commitments shall be
allocated among the Lenders ratably according to their respective Commitments
(such deemed use of the aggregate amount of the Commitments being a "Competitive
Bid Reduction"), provided further that the Borrower may not request a Revolving
Borrowing, and no Revolving Borrowing shall be made, if, after giving effect
thereto, the aggregate amount of the Debt of the Borrower or the Borrower and
its Subsidiaries would contravene (i) any provision contained in the Borrower's
charter or by-laws or (ii) any contractual restriction binding on or affecting
the Borrower. Each Revolving Borrowing shall be in an aggregate amount of
$5,000,000 (or in the equivalent thereof in any Alternative Currency) or an
integral multiple of $1,000,000 (or in the equivalent thereof in any Alternative
Currency) in excess thereof (or, if less, an aggregate amount equal to the
amount by which the aggregate amount of a proposed Competitive Bid Borrowing
requested by the Borrower exceeds the aggregate amount of Competitive Bid
Advances offered to be made by the Lenders and accepted by the Borrower in
respect of such Competitive Bid Borrowing, if such Competitive Bid Borrowing is
made on the same date as such Revolving Borrowing) and shall consist of
Revolving Advances of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Notwithstanding anything herein to
the contrary, no Revolving Borrowing may be made in an Alternative Currency if,
after giving effect to the making of such Revolving Borrowing, the aggregate
amount of outstanding Revolving Advances denominated in one or more Alternative
Currencies would exceed the Dollar equivalent of $20,000,000. Within the limits
of each Lender's Commitment, the Borrower may borrow under this Section
2.01(a)(ii), prepay pursuant to Section 2.09(b) and reborrow under this Section
2.01(a)(ii). For purposes of this Section 2.01(a)(ii) and all other provisions
of this Article II, the equivalent in Dollars of any Alternative Currency or the
equivalent in any Alternative Currency of Dollars or of any other Alternative
Currency shall be determined in accordance with Section 2.17.
(b) The Borrower may designate in a Notice of Revolving Borrowing
that the proceeds of the proposed Revolving Borrowing (a "Redemption Borrowing")
shall be applied to redeem or purchase in part the Series A Preferred Stock, the
Series B Preferred Stock or the common stock of the Borrower issuable upon
conversion of the Series B Preferred Stock, provided that (i) the aggregate
amount of all Redemption Borrowings shall not exceed $120,000,000 from
21
the date hereof, (ii) no more than two Redemption Borrowings shall be made in
any calendar year and (iii) each Redemption Borrowing shall be denominated in
Dollars.
SECTION 2.02. Making the Revolving Advances. (a) Each Revolving
Borrowing shall be made on notice, given not later than (x) 10:00 A.M. (New York
City time) on the date of the proposed Revolving Borrowing, in the case of a
Revolving Borrowing consisting of Base Rate Advances, and not later than (y)
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Revolving Borrowing, in the case of a Revolving Borrowing
consisting of Eurocurrency Rate Advances denominated in Dollars, and (z) 11:00
A.M. (New York City time) on the fifth Business Day prior to the date of the
proposed Revolving Borrowing, in the case of a Revolving Borrowing consisting of
Eurocurrency Rate Advances denominated in an Alternative Currency, in each case
by the Borrower to the Agent, which shall give to each Lender prompt notice
thereof by telephone, telecopier, telex or cable. Each such notice of a
Revolving Borrowing (a "Notice of Revolving Borrowing") shall be by telephone,
telecopier, telex or cable, confirmed immediately in writing, in substantially
the form of Exhibit B-1 hereto, specifying therein (i) the requested date of
such Revolving Borrowing, (ii) the requested Type of Advances comprising such
Revolving Borrowing, (iii) the requested aggregate amount of such Revolving
Borrowing, (iv) in the case of a Revolving Borrowing comprised of Eurocurrency
Rate Advances, the requested Interest Period for each such Revolving Advance and
the currency of such Revolving Borrowing and (v) whether such Revolving
Borrowing is a Redemption Borrowing.
In the case of a Revolving Borrowing comprised of Eurocurrency
Rate Advances in an Alternative Currency (other than the lawful money of Great
Britain, the lawful money of the Netherlands and the lawful money of Japan), the
obligation of each Lender to make its Eurocurrency Rate Advance in the requested
Alternative Currency as part of such Revolving Borrowing is subject to the
confirmation by such Lender to the Agent not later than the fourth Business Day
before the requested date of such Revolving Borrowing that such Lender agrees to
make its Eurocurrency Rate Advance in the requested Alternative Currency, which
confirmation shall be notified immediately by the Agent to the Borrower. If any
Lender shall not have so provided to the Agent such confirmation, the Agent
shall promptly notify the Borrower and each Lender that a Lender has not
provided such confirmation, whereupon the Borrower may, by notice to the Agent
not later than the third Business Day before the requested date of such
Revolving Borrowing, withdraw the Notice of Revolving Borrowing relating to such
requested Borrowing. If the Borrower does so withdraw such Notice of Revolving
Borrowing, the Revolving Borrowing requested in such Notice of Revolving
Borrowing shall not occur and the Agent shall promptly so notify each Lender. If
the Borrower does not so withdraw such Notice of Revolving Borrowing, the Agent
shall promptly so notify each Lender and such Notice of Revolving Borrowing
shall be deemed to be a Notice of Revolving Borrowing which requests a Revolving
Borrowing comprised of Eurocurrency Rate Advances in an aggregate amount in
Dollars equivalent, on the date the Agent so notifies each Lender, to the amount
of the originally
22
requested Revolving Borrowing in such an Alternative Currency; and in such
notice by the Agent to each Lender the Agent shall state such aggregate
equivalent amount of such Revolving Borrowing in Dollars and such Lender's
ratable portion of such Borrowing.
Each Lender shall, before 11:00 A.M. (New York City time) on the
date of such Revolving Borrowing, make available for the account of its
Applicable Lending Office to the Agent (i) in the case of a Revolving Borrowing
in Dollars, at its address referred to in Section 8.02, in same day funds, such
Lender's ratable portion of such Revolving Borrowing in Dollars, and (ii) in the
case of a Revolving Borrowing in an Alternative Currency, at such account
maintained at the Payment Office for such Alternative Currency as shall have
been notified by the Agent to the Lenders prior thereto, in same day funds, such
Lender's ratable portion of such Revolving Borrowing in such Alternative
Currency. After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such funds
available to the Borrower at the Agent's aforesaid address or at the applicable
Payment Office.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurocurrency Rate Advances for any
Revolving Borrowing if the aggregate amount of such Revolving Borrowing is less
than $5,000,000 (or its equivalent in any Alternative Currency) or if the
obligation of the Lenders to make Eurocurrency Rate Advances shall then be
suspended pursuant to Section 2.07.
(c) Each Notice of Revolving Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Revolving Borrowing which the
related Notice of Revolving Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Revolving Borrowing
for such Revolving Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Revolving Advance to
be made by such Lender as part of such Revolving Borrowing when such Revolving
Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Revolving Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such ratable
portion available to the Agent, such Lender and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount
23
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 Agent, at
(i) in the case of the Borrower, the interest rate applicable at the time to
Revolving Advances comprising such Revolving Borrowing and (ii) in the case of
such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Advance as part of such Revolving Borrowing for purposes of this
Agreement and, if the Borrower shall repay to the Agent such corresponding
amount pursuant to this clause (d), such repayment shall not relieve such Lender
from its obligations hereunder to the Borrower.
(e) The failure of any Lender to make the Revolving Advance to be
made by it as part of any Revolving Borrowing shall not relieve any other Lender
of its obligation, if any, hereunder to make its Revolving Advance on the date
of such Revolving Borrowing, but no Lender shall be responsible for the failure
of any other Lender to make the Revolving Advance to be made by such other
Lender on the date of any Revolving Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to pay
to the Agent for the account of each Lender (other than the Designated Bidders)
a facility fee on the aggregate amount of such Lender's Commitment from the
Effective Date in the case of each Bank and from the later of the Effective Date
and the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender until the Termination
Date at a rate per annum equal to the Applicable Percentage in effect from time
to time, payable on the last day of each March, June, September and December,
commencing June 30, 1995, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
SECTION 2.04. Reduction or Termination of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or reduce ratably in part the unused portions of
the respective Commitments of the Lenders, provided that each partial reduction
shall be in the aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and provided further that the aggregate amount of
the Commitments of the Lenders shall not be reduced to an amount that is less
than the aggregate principal amount of the Competitive Bid Advances then
outstanding.
SECTION 2.05. Repayment of Revolving Advances. The Borrower shall
repay to the Agent for the ratable account of the Lenders on the Termination
Date the principal amount of the Revolving Advances then outstanding.
SECTION 2.06. Interest on Revolving Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Advance owing to
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each Lender from the date of such Revolving Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Advance is a Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time, payable in arrears monthly on
the last day of each month during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Advance is a Eurocurrency Rate Advance, a rate per annum equal
at all times during each Interest Period for such Revolving Advance to
the sum of (x) the Eurocurrency Rate for such Interest Period for such
Revolving Advance plus (y) the Applicable Margin in effect on the first
day of such Interest Period, payable on the last day of such Interest
Period and, if such Interest Period has a duration of more than three
months, on each day which occurs during such Interest Period every three
months from the first day of such Interest Period and on the date such
Eurocurrency Rate Advance shall be Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on (i) the
unpaid principal amount of each Revolving Advance that is not paid when due from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Revolving Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
SECTION 2.07. Interest Rate Determination. (a) The Agent shall
give prompt notice to the Borrower and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.06(a)(i) or (ii).
(b) If, with respect to any Eurocurrency Rate Advances, the
Required Lenders notify the Agent that the Eurocurrency Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective Eurocurrency Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon
(i) each Eurocurrency Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
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(ii) the obligation of the Lenders to make, or to Convert
Revolving Advances into, Eurocurrency Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such Revolving
Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000 (or its equivalent in any
Alternative Currency), such Revolving Advances shall automatically Convert into
Base Rate Advances at the end of the applicable Interest Period for such
Revolving Advances.
SECTION 2.08. Voluntary Conversion of Revolving Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.07 and 2.12,
Convert, pro rata based on the Lenders' respective Commitments, Revolving
Advances of one Type denominated in Dollars comprising the same Borrowing into
Revolving Advances of the other Type denominated in Dollars or, in the case of
Eurocurrency Rate Advances (whether denominated in Dollars or in Alternative
Currency), into Revolving Advances with a different Interest Period; provided,
however, that in the event of any Conversion of Eurocurrency Rate Advances into
Base Rate Advances or Eurocurrency Rate Advances with a different Interest
Period on a day other than the last day of an Interest Period for the
Eurocurrency Rate Advances being Converted, the Borrower shall reimburse the
Lenders in respect of such Eurocurrency Rate Advances to the extent required by
Section 8.04(c) and any Conversion of Base Rate Advances into Eurocurrency Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(b). Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Revolving
Advances to be Converted and (iii) if such Conversion is into Eurocurrency Rate
Advances, the duration of the Interest Period for each such Revolving Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.09. Prepayments of Revolving Advances. (a) The Borrower
shall have no right to prepay any principal amount of any Revolving Advances
other than as provided below.
(b) The Borrower may, upon at least three Business Days' notice,
in the case of Eurocurrency Rate Advances, and one Business Day's notice given
not later than 11:00 A.M.
26
(New York City time), in the case of Base Rate Advances, to the Agent stating
the proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amounts of
the Revolving Advances comprising part of the same Revolving Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount not less than
$5,000,000 or the equivalent thereof in an Alternative Currency (determined on
the date notice of repayment is given in accordance with Section 2.17) or an
integral multiple of $1,000,000 or the equivalent thereof in an Alternative
Currency (determined on the date notice of repayment is given in accordance with
Section 2.17) in excess thereof, (y) in the event of any such prepayment of a
Eurocurrency Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof to the extent required by Section 8.04(c) and (z) any
such prepayment occurring within 6 months after the making of any Redemption
Borrowing shall be applied first to prepay any outstanding Revolving Borrowings
(other than Redemption Borrowings) and second to prepay any outstanding
Redemption Borrowings.
(c) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Revolving Advances comprising part of the same Revolving
Borrowings equal to the amount by which the aggregate principal amount of the
Advances then outstanding exceeds the aggregate Commitments of the Lenders on
such Business Day. For purposes of this subsection (c), the aggregate principal
amount of Eurocurrency Rate Advances denominated in any Alternative Currency
shall be determined in Dollars as set forth in Section 2.17. The Agent shall
give prompt notice of any prepayment required under this Section 2.09(c) to the
Borrower and the Lenders.
(d) On any Business Day on which the aggregate amount of the Debt
of the Borrower or of the Borrower and its Subsidiaries would, but for the
operation of this subsection (d), contravene (i) any provision contained in the
Borrower's charter or by-laws or (ii) any contractual restriction binding on or
affecting the Borrower, the Borrower shall, on such Business Day, prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount sufficient to prevent the occurrence of any such
contravention.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation, with respect to any Eurocurrency Rate Advance, after the date
hereof, and with respect to any LIBO Rate Advance, after the date on which one
or more Lenders offered to make such LIBO Rate Advance pursuant to Section
2.15(a)(ii) or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), with respect to any Eurocurrency Rate Advance, after the date hereof, and
with respect to any LIBO Rate Advance, after the date on which one or more
Lenders offered to make such LIBO Rate Advance pursuant to Section 2.15(a)(ii),
there shall be any increase in the cost (other than in taxes, except to the
extent that the same are required to be paid pursuant to Section 2.13) to any
Lender of agreeing to make or making, funding or maintaining any Eurocurrency
Rate Advance or LIBO Rate Advance, then the
27
Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased cost;
provided, however, that, before making any such demand, each Lender agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender. A certificate as to the
amount of such increased cost, setting forth the basis therefor in reasonable
detail and submitted by such Lender to the Borrower and the Agent together with
any demand under this subsection (a), shall be presumed correct absent
demonstrable error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) after the date
hereof affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
upon demand by such Lender (with a copy of such demand to the Agent), the
Borrower shall pay to the Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend hereunder;
provided, however, that, before making any such demand, each Lender agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such additional amounts payable under this subsection (b) and would not, in
the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to such amounts, setting forth the basis therefor in
reasonable detail and submitted to the Borrower and the Agent by such Lender
together with any demand under this paragraph (b) shall be presumed correct
absent demonstrable error.
(c) Notwithstanding any other provision in this Section 2.10, no
Lender shall be entitled to demand compensation pursuant to this Section 2.10
unless such Lender shall certify to the Borrower that it is at the time the
general policy or practice of such Lender to demand such compensation in similar
circumstances under comparable provisions of other comparable credit agreements
with borrowers of similar credit quality. The Borrower shall pay each Lender the
amount shown as due on any certificate delivered by such Lender pursuant to
paragraph (a) or (b) above within 30 days after its receipt of the same.
(d) No Lender shall be entitled to compensation under this
Section 2.10 for any costs incurred or reductions suffered with respect to any
event or circumstance unless such Lender shall have notified the Borrower, not
more than 120 days after such Lender becomes aware of
28
such event or circumstance, that it will demand compensation for such costs or
reductions in a certificate described in the last sentence of each of paragraphs
(a) and (b) above.
SECTION 2.11. Illegality. (a) Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent and the Borrower that
the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances in Dollars or in any Alternative Currency or LIBO Rate Advances or to
fund or maintain Eurocurrency Rate Advances in Dollars or in any Alternative
Currency or LIBO Rate Advances hereunder, (i) the obligation of such Lender to
make Eurocurrency Rate Advances in Dollars or in such Alternative Currency or
LIBO Rate Advances, as the case may be, or to Convert Revolving Advances into
Eurocurrency Rate Advances shall be suspended, whereupon any request by the
Borrower for a Borrowing comprised of Eurocurrency Rate Advances or LIBO Rate
Advances shall, as to such Lender only, be deemed a request for a Base Rate
Advance until such Lender shall notify the Agent and the Borrower that the
circumstances causing such suspension no longer exist and (ii) such Lender may
require that all outstanding Eurocurrency Rate Advances in Dollars or in such
Alternative Currency and LIBO Rate Advances, as the case may be, made by it be
Converted to Base Rate Advances, in which event all such Eurocurrency Rate
Advances in Dollars or in such Alternative Currency and LIBO Rate Advances, as
the case may be, shall be automatically Converted to Base Rate Advances as of
the effective date of such notice; provided, however, that each Lender agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurocurrency Lending Office if
the making of such a designation would enable such Lender to withdraw its notice
under this subsection (a) and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender. In the event any Lender
shall notify the Agent and the Borrower of the occurrence of the circumstances
causing such suspension under this Section 2.11(a), all payments and prepayments
of principal that would otherwise have been applied to repay the Eurocurrency
Rate Advances or LIBO Rate Advances that would have been made by such Lender or
the Converted Eurocurrency Rate Advances shall instead be applied to repay the
Base Rate Advances made by such Lender in lieu of such Eurocurrency Rate
Advances or LIBO Rate Advances, or resulting from the Conversion of such
Eurocurrency Rate Advances.
(b) For purposes of this Section 2.11, a notice to the Borrower
by any Lender shall be effective as to each Eurocurrency Rate Advance and LIBO
Rate Advance, if lawful, on the last day of the Interest Period currently
applicable to such Eurocurrency Rate Advance or LIBO Rate Advance, as the case
may be; in all other cases such notice shall be effective on the date of the
occurrence of the circumstances causing such suspension under subsection (a)
above.
SECTION 2.12. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Notes, except with respect to
principal of, interest on, and other
29
amounts relating to, Advances denominated in an Alternative Currency, not later
than 12:00 Noon (New York City time) on the day when due in Dollars to the Agent
at its address referred to in Section 8.02 in same day funds. The Borrower shall
make each payment hereunder and under the Notes with respect to principal of,
interest on, and other amounts relating to Advances denominated in an
Alternative Currency not later than 12:00 Noon (at the Payment Office for such
Alternative Currency) on the day when due in such Alternative Currency to the
Agent in same day funds by deposit of such funds to the Agent's account
maintained at such Payment Office. The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.10,
2.13, 2.15 or 8.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(g),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Lender assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurocurrency Rate or the Federal
Funds Rate and of facility fees shall be made by the Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
30
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender,
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or the Agent, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.13) such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.13) paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand therefor.
31
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by the Borrower through an
account or branch outside the United States or on behalf of the Borrower by a
payor that is not a United States person, if the Borrower determines that no
Taxes are payable in respect thereof, the Borrower shall furnish, or shall cause
such payor to furnish, to the Agent, at such address, an opinion of counsel
acceptable to the Agent stating that such payment is exempt from Taxes. For
purposes of this Section 2.13, the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter if requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower with Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the rate of withholding tax
on payments of interest or certifying that the income receivable pursuant to
this Agreement or the Notes is effectively connected with the conduct of a trade
or business in the United States. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section 2.13(a).
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.13(a) with
respect to Taxes imposed by the United States; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower, at the requesting Lender's expense, shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant
to this Section 2.13 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts
32
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) The Agent or any Lender will notify the Borrower if it
becomes aware of any circumstances that entitle the Borrower to a refund of
Taxes paid by the Borrower pursuant to this Section 2.13 if the Borrower would
not otherwise know or have reason to know of its entitlement to such refund.
Within 30 days of the written request of the Borrower therefor, the Lenders and
the Agent, as appropriate, shall, at the Borrower's expense, execute and deliver
to the Borrower such certificates, forms or other documents that can be
furnished consistent with the facts and that are reasonably necessary to assist
the Borrower in applying for refunds of Taxes paid by the Borrower pursuant to
either Section 2.13(a) or Section 2.13(c).
(i) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 2.13 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of the Revolving Advances owing to it
(other than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its ratable
share of payments on account of the Revolving Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Advances owing to them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them, provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of setoff) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.15. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.15 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, (x) the aggregate amount of the Competitive Bid
Advances of all Lenders then outstanding shall not exceed $100,000,000, (y) the
aggregate amount of the Competitive Bid Advances of any one Lender then
outstanding shall not exceed
33
$50,000,000 and (z) the aggregate amount of the Advances then outstanding shall
not exceed the aggregate amount of the Commitments of the Lenders (computed
without regard to any Competitive Bid Reduction); provided further that the
Borrower may not request a Competitive Bid Borrowing, and no Competitive Bid
Borrowing shall be made, if, after giving effect thereto, the aggregate amount
of Debt of the Borrower or the Borrower and its Subsidiaries would contravene
(i) any provision contained in the Borrower's charter or by-laws or (ii) any
contractual restriction binding on or affecting the Borrower.
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.15 by delivering to the Agent, by telephone, telecopier,
telex or cable, a notice of a Competitive Bid Borrowing (a "Notice of
Competitive Bid Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, Interest Period, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances,
maturity date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date may not be
earlier than the date occurring seven days after the date of such
Competitive Bid Borrowing or later than the earlier of (I) 180 days
after the date of such Competitive Bid Borrowing and (II) the
Termination Date), (y) interest payment date or dates relating thereto
and (z) other terms (if any) to be applicable to such Competitive Bid
Borrowing, not later than 10:00 A.M. (New York City time) (A) at least
one Business Day prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall specify in the Notice of Competitive
Bid Borrowing that the rates of interest to be offered by the Lenders
shall be fixed rates per annum (each Advance comprising part of such
Competitive Bid Borrowing being referred to herein as a "Fixed Rate
Advance") and (B) at least four Business Days prior to the date of the
proposed Competitive Bid Borrowing, if the Borrower shall instead
specify in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders are to be based on the LIBO Rate
(each Advance comprising part of any such Competitive Bid Borrowing that
is offered by the Lenders at the LIBO Rate is referred to herein as a
"LIBO Rate Advance"). Subject to subsection (a)(iii)(x) below, each
Notice of Competitive Bid Borrowing shall be irrevocable and binding on
the Borrower. The Agent shall in turn promptly notify each Lender of
each request for a Competitive Bid Borrowing received by it from the
Borrower by sending such Lender a copy of the related Notice of
Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to
the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by written notice (the "Offer") to the Agent (which shall
give prompt notice thereof to the Borrower), before 9:30 A.M. (New York
City time) on the date of
34
such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances and before 10:00 A.M.
(New York City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, of the minimum amount and
maximum amount of each Competitive Bid Advance which such Lender would
be willing to make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first sentence of this
Section 2.15(a), exceed such Lender's Commitment, if any), the rate or
rates of interest therefor and such Lender's Applicable Lending Office
with respect to such Competitive Bid Advance; provided that if the Agent
in its capacity as a Lender shall, in its sole discretion, elect to make
any such offer, it shall notify the Borrower of such offer at least 30
minutes before the time and on the date on which notice of such election
is to be given to the Agent by the other Lenders. If any Lender shall
elect not to make such an offer, such Lender shall so notify the Agent,
before 10:00 A.M. (New York City time) on the date on which notice of
such election is to be given to the Agent by the other Lenders, and such
Lender shall not be obligated to, and shall not, make any Competitive
Bid Advance as part of such Competitive Bid Borrowing; provided that the
failure by any Lender to give such notice shall not cause such Lender to
be obligated to make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 10:30 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 11:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the
Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender
or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving written notice to the Agent of the amount
of each Competitive Bid Advance (which amount shall be equal to
or greater than the minimum amount, and equal to or less than
the maximum amount, notified to the Borrower by the Agent on
behalf of such Lender for such Competitive Bid Advance pursuant
to paragraph (ii) above) to be made by each Lender as part of
such Competitive Bid Borrowing, and reject any remaining offers
made by Lenders pursuant to paragraph (ii) above by giving the
Agent notice to that effect. The Borrower shall accept the
offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of interest
offered by such Lenders. If two or more Lenders have offered the
same interest rate, the amount to be borrowed at such interest
rate will be allocated
35
among such Lenders in proportion to the amount that each such
Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such Competitive Bid
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent
shall give prompt notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall
in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or offers
made by such Lender pursuant to paragraph (ii) above have been accepted
by the Borrower, (B) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the amount of each
Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing shall, before 12:00 noon (New York City time) on the date
of such Competitive Bid Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent pursuant
to clause (C) of the preceding sentence, make available for the account
of its Applicable Lending Office to the Agent at its address referred to
in Section 8.02, in same day funds, such Lender's portion of such
Competitive Bid Borrowing. Upon fulfillment of the applicable conditions
set forth in Article III and after receipt by the Agent of such funds,
the Agent will make such funds available to the Borrower at the Agent's
aforesaid address or at the applicable Payment Office. Promptly after
each Competitive Bid Borrowing the Agent will notify each Lender of the
amount of the Competitive Bid Borrowing, the consequent Competitive Bid
Reduction and the dates upon which such Competitive Bid Reduction
commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such notice of acceptance shall be irrevocable and
binding on the Borrower. The Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in the related
Notice of Competitive Bid Borrowing for such Competitive Bid Borrowing
the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive
Bid Advance to be made
36
by such Lender as part of such Competitive Bid Borrowing when such
Competitive Bid Advance, as a result of such failure, is not made on
such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower and
each Lender shall be in compliance with the limitations set forth in the proviso
to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.15, the Borrower may from time to time borrow under this Section 2.15,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.15, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of each
Lender that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by the Borrower
for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above), the
then unpaid principal amount of such Competitive Bid Advance. The Borrower shall
have no right to prepay any principal amount of any Competitive Bid Advance
unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above. The Borrower shall pay interest on (i) the
unpaid principal amount of each Competitive Bid Advance that is not paid when
due from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date or dates interest is payable thereon, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Competitive Bid Advance under the terms of the Offer
for such Competitive Bid Advance unless otherwise agreed in such Offer and (ii)
the amount of any interest on each Competitive Bid Advance that is not paid when
due, from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms of
the Offer for such Competitive Bid Advance unless otherwise agreed in such
Offer.
37
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a Competitive Bid Note of the Borrower payable
to the order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing,
the Borrower shall pay a non-refundable fee of $1,800 to the Agent for its own
account.
SECTION 2.16. Voluntary Redenomination of Revolving Advances. The
Borrower may, upon notice given to the Agent at least five Business Days prior
to the date of the proposed Redenomination, request that all Eurocurrency Rate
Advances comprising part of the same Revolving Borrowing be Redenominated from
Dollars into an Alternative Currency or from an Alternative Currency into
Dollars or another Alternative Currency; provided, however, that any
Redenomination shall be made on, and only on, the last day of an Interest Period
for such Revolving Advances. Each such notice of request of a Redenomination (a
"Notice of Redenomination") shall be by telephone, telecopier, telex or cable,
in substantially the form of Exhibit E hereto, specifying (i) the Eurocurrency
Rate Advances comprising the Revolving Borrowing to be Redenominated, (ii) the
date of the proposed Redenomination, (iii) the currency into which such
Revolving Advances are to be Redenominated and (iv) the duration of the Interest
Period for such Revolving Advances upon being so Redenominated. In the case of a
Notice of Redenomination which requests a Redenomination of Revolving Advances
into an Alternative Currency (other than the lawful money of Great Britain, the
lawful money of the Netherlands and the lawful money of Japan), such
Redenomination is subject to the confirmation by each Lender to the Agent not
later than the fourth Business Day before the requested date of such
Redenomination that such Lender agrees to such Redenomination, which
confirmation shall be notified immediately by the Agent to the Borrower. If any
Lender shall not have so provided to the Agent such confirmation, the requested
Redenomination will not occur and the Agent shall promptly notify the Borrower
and each Lender that a Lender has not provided such confirmation and that the
requested Redenomination will not occur. If each Lender shall have so provided
to the Agent such confirmation or if such Notice of Redenomination requests a
Redenomination of Revolving Advances into Dollars, the lawful money of Great
Britain, the lawful money of the Netherlands or the lawful money of Japan, each
Revolving Advance so requested to be Redenominated will be Redenominated, on the
date specified therefor in such Notice of Redenomination, into an equivalent
amount thereof in the currency requested in such Notice of Redenomination, such
equivalent amount to be determined on such date in accordance with Section 2.17,
and, upon being so Redenominated, will have an initial Interest Period as
requested in such Notice of Redenomination.
SECTION 2.17. Currency Equivalents. For purposes of the
provisions of this Article II, (i) the equivalent in Dollars of any Alternative
Currency shall be determined by using the quoted spot rate at which Citibank's
principal office in London offers to exchange Dollars for
38
such Alternative Currency in London at 11:00 A.M. (London time) two Business
Days prior to the date on which such equivalent is to be determined, (ii) the
equivalent in any Alternative Currency of any other Alternative Currency shall
be determined by using the quoted spot rate at which Citibank's principal office
in London offers to exchange such Alternative Currency for the equivalent in
Dollars of such other Alternative Currency in London at 11:00 A.M. (London time)
two Business Days prior to the date on which such equivalent is to be
determined, and (iii) the equivalent in any Alternative Currency of Dollars
shall be determined by using the quoted spot rate at which Citibank's principal
office in London offers to exchange such Alternative Currency for Dollars in
London at 11:00 A.M. (London time) two Business Days prior to the date on which
such equivalent is to be determined. The equivalent in Dollars of each
Eurocurrency Rate Advance made in an Alternative Currency shall be recalculated
hereunder on each date that it shall be necessary to determine the unused
portion of each Lender's Commitment, or any or all Revolving Advance or Advances
outstanding on such date.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances shall
be available (and the Borrower agrees that it shall use such proceeds) (a) in
the case of all Borrowings other than Redemption Borrowings, solely for general
corporate purposes of the Borrower and its Subsidiaries, including, without
limitation, for purposes of making acquisitions permitted hereunder, but
excluding (x) the redemption or purchase by the Borrower of the Series A
Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock and
the common stock of the Borrower issuable upon the conversion of the Series B
Preferred Stock and (y) the prepayment of Redemption Borrowings and (b) in the
case of Redemption Borrowings, solely for the redemption or purchase by the
Borrower of the Series A Preferred Stock, the Series B Preferred Stock and the
common stock of the Borrower issuable upon the conversion of the Series B
Preferred Stock in accordance with the terms of the Series A Certificate or
Series B Certificate, as the case may be, or on such other terms and conditions
as the Required Lenders and the Agent shall agree.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.15. Sections 2.01 and 2.15 of this Agreement shall become effective
as of the Effective Date, subject to the conditions precedent that:
(a) There shall have occurred no Material Adverse Change since
December 31, 1994.
39
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that
(i) could reasonably be expected to have a Material Adverse Effect other
than the matters described on Schedule 3.01(b) (the "Disclosed
Litigation") or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby, and there shall have been no material
adverse change in the status, or financial effect on the Borrower or any
of its Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b).
(c) All governmental and third party consents and approvals
necessary in connection with this Agreement or the transactions
contemplated hereby and with the execution, delivery and performance of
this Agreement and the Notes shall have been obtained (without the
imposition of any conditions that are not acceptable to the Lenders) and
shall remain in effect and all material governmental and third party
consents and approvals necessary in order for the Borrower to conduct
its business as contemplated by the 1994 10K shall have been obtained
(without the imposition of any conditions that are not acceptable to the
Lenders) and shall remain in effect, and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.
(d) The Borrower shall have paid all accrued fees and expenses of
the Agent and all accrued financing fees of the Lenders (including the
accrued fees and expenses of counsel to the Agent); provided, however,
that the Borrower shall only be obligated to pay on the Effective Date
those expenses for which it has received invoices at least one Business
Day prior to the Effective Date.
(e) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory
to the Agent and (except for the Revolving Notes) in sufficient copies
for each Lender:
(i) The Notes to the order of the Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes,
and of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to this
Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower
40
authorized to sign this Agreement and the Notes and the other
documents to be delivered hereunder.
(iv) An environmental assessment update report prepared by
the Borrower, in form, scope and substance reasonably
satisfactory to the Lenders, as to any environmental hazards or
liabilities to which the Borrower or any of its Subsidiaries may
be subject, and the Lenders shall be reasonably satisfied with
the amount and nature of any such hazards or liabilities and with
the Borrower's plans with respect thereto.
(v) A certified copy of the Series A Certificate, the
Series B Certificate and the Series C Certificate.
(vi) A favorable opinion of Cravath, Swaine & ▇▇▇▇▇,
special counsel for the Borrower, substantially in the form of
Exhibit F-1 hereto and as to such other matters as any Lender
through the Agent may reasonably request.
(vii) A favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
General Counsel of the Borrower, substantially in the form of
Exhibit F-2 hereto and as to such other matters as any Lender
through the Agent may reasonably request.
(viii) A favorable opinion of Shearman & Sterling, counsel
for the Agent, in form and substance satisfactory to the Agent.
SECTION 3.02. Additional Conditions Precedent to Effectiveness.
The effectiveness of Sections 2.01 and 2.15 of this Agreement shall be subject
to the further conditions precedent that on the Effective Date the following
statements shall be true and the Agent shall have received for the account of
each Lender a certificate signed by a duly authorized officer of the Borrower,
dated the Effective Date, stating that the following statements are true:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
SECTION 3.03. Conditions Precedent to Each Revolving Borrowing.
The obligation of each Lender to make a Revolving Advance on the occasion of
each Revolving Borrowing shall be subject to the further conditions precedent
that on the date of such Revolving Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Revolving Borrowing and
the acceptance by the Borrower of the proceeds of such Revolving
41
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Revolving Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Revolving Borrowing, before
and after giving effect to such Revolving Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date,
(ii) No event has occurred and is continuing, or would result
from such Revolving Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, and
(iii) After giving effect to such Revolving Borrowing, the
aggregate amount of Debt of the Borrower and of the Borrower and its
Subsidiaries will not contravene (A) any provision contained in the
Borrower's charter or by-laws or (B) any contractual restriction binding
on or affecting the Borrower.
SECTION 3.04. Conditions Precedent to Each Redemption Borrowing.
The obligation of each Lender to make a Revolving Advance on the occasion of
each Redemption Borrowing shall be subject to the further condition precedent
that if the terms and conditions of the redemption or purchase of the Series A
Preferred Stock, the Series B Preferred Stock or the common stock of the
Borrower issuable upon conversion of the Series B Preferred Stock for which the
Borrower proposes to use the proceeds of such Redemption Borrowing vary in any
respect from the terms and conditions set forth in the Series A Certificate for
such redemption or purchase, in the case of a proposed redemption or purchase of
the Series A Preferred Stock, or the Series B Certificate for such redemption or
purchase, in the case of a proposed redemption or purchase of the Series B
Preferred Stock or the common stock of the Borrower issuable upon conversion of
the Series B Preferred Stock, the Lenders shall have consented in writing to
such redemption or purchase on such terms and conditions.
SECTION 3.05. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender for any Competitive Bid Advances to be made
by such Lender as part of such Competitive Bid Borrowing, in a principal amount
equal to the aggregate Commitments of the Lenders hereunder, and (iii) on the
date of such Competitive Bid Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of Competitive Bid Borrowing
and the acceptance by the
42
Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Competitive
Bid Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01
are correct on and as of the date of such Competitive Bid Borrowing,
before and after giving effect to such Competitive Bid Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date,
(b) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default,
(c) no event has occurred and no circumstance exists as a result
of which the information concerning the Borrower that has been provided
to the Agent and each Lender by the Borrower in connection herewith
would include an untrue statement of a material fact or omit to state
any material fact or any fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made,
not misleading, and
(d) after giving effect to such Competitive Bid Borrowing, the
aggregate amount of Debt of the Borrower or the Borrower and its
Subsidiaries will not contravene (i) any provision contained in the
Borrower's charter or by-laws or (ii) any contractual restriction
binding on or affecting the Borrower.
SECTION 3.06. Determinations Under Sections 3.01 and 3.02. For
purposes of determining compliance with the conditions specified in Sections
3.01 and 3.02, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless an officer of the Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender prior
to the proposed Effective Date, as notified by the Borrower to the Lenders,
specifying its objection thereto.
SECTION 3.07. Notice of Effective Date. Upon the occurrence of
the Effective Date, the Agent shall notify the Lenders that the Effective Date
has occurred in accordance with Sections 3.01 and 3.02, which notice shall be
conclusive and binding on the parties hereto for all purposes.
43
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) any law binding
on or affecting the Borrower or any contractual restriction binding on,
or, to the best of Borrower's knowledge, affecting, the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes.
(d) This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their
respective terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally.
(e) The balance sheets of the Borrower and its Subsidiaries as at
December 31, 1994, and the related statements of income and cash flows
of the Borrower and its Subsidiaries for the fiscal year then ended, and
the Consolidated balance sheet of the Borrower and its Subsidiaries as
at March 31, 1995, and the related Consolidated statement of income and
cash flows of the Borrower and its Subsidiaries for the three months
then ended, duly certified by the chief financial officer of the
Borrower, copies of which have been furnished to each Bank, fairly
present, subject, in the case of said balance sheet as at March 31,
1995, and said statement of income and cash flows for the three months
then ended, to year-end audit adjustments, the financial condition of
the Borrower and its Subsidiaries as at such dates and the results of
the operations of the Borrower and its Subsidiaries for the periods
ended on such dates, all in accordance with generally accepted
accounting principles consistently applied, and since December 31, 1994,
there has been no Material Adverse Change.
(f) There is no pending action or proceeding against or, to the
best of the Borrower's knowledge, otherwise affecting the Borrower or
any of its Subsidiaries or, to
44
the best of the Borrower's knowledge, threatened action or proceeding
affecting the Borrower or any of its Subsidiaries, including, without
limitation, any Environmental Action, before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect (other than the Disclosed Litigation) or (ii)
purports to affect the legality, validity or enforceability of this
Agreement or any Note, and there has been no change in the status, or
financial effect on the Borrower or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.01(b) that could
be reasonably expected to have a Material Adverse Effect.
(g) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or 5.02(c) or subject to
any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Debt
and within the scope of Section 6.01(d) will be margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System). For purposes of this Section 4.01(g), "assets" of the
Borrower or any of its Subsidiaries includes, without limitation, the
treasury stock of the Borrower that has not been retired.
(h) Other than as set forth on Schedule 4.01(h), the operations
and properties of the Borrower and each of its Subsidiaries comply in
all respects with all applicable Environmental Laws, all necessary
Environmental Permits have been obtained and are in effect for the
operations and properties of the Borrower and its Subsidiaries, the
Borrower and its Subsidiaries are in compliance with all such
Environmental Permits, except to the extent that any such noncompliance
or failure to obtain any necessary permits could not be reasonably
expected to have a Material Adverse Effect, and to the knowledge of the
Borrower, no circumstances exist that could be reasonably expected to
(i) form the basis of an Environmental Action against the Borrower or
any of its Subsidiaries or any of their properties that could have a
Material Adverse Effect or (ii) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability under
any applicable Environmental Law that could have a Material Adverse
Effect.
(i) Other than the properties set forth on Schedule 4.01(i) or
such other properties as to which a Material Adverse Effect could not
reasonably be expected to result, none of the properties currently or
formerly owned or operated by the Borrower or any of its Subsidiaries is
listed or, to the knowledge of the Borrower, proposed for listing on the
National Priorities List under CERCLA or on the CERCLIS or any analogous
state list.
(j) Other than the locations set forth on Schedule 4.01(j) or
such other locations as to which a Material Adverse Effect could not
reasonably be expected to result, neither
45
the Borrower nor any of its Subsidiaries has transported or arranged for
the transportation of any Hazardous Materials to any location that is
listed or, to the knowledge of the Borrower, proposed for listing on the
National Priorities List under CERCLA or on the CERCLIS or any analogous
state list; other than as set forth on Schedule 4.01(j), Hazardous
Materials have not been released or disposed of on any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries in material violation of any applicable Environmental Law
or in a manner which could result in material liability to the Borrower
or any of its Subsidiaries; and all Hazardous Materials have been used,
treated, handled, stored and disposed of on such properties in material
compliance with all applicable Environmental Laws and Environmental
Permits.
(k) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(l) Schedule B (Actuarial Information) to the 1994 annual report
(Form 5500 Series) for each Plan, copies of which will have been filed
with the Internal Revenue Service and furnished to the Lenders on or
prior to September 30, 1995, will be complete and accurate in all
material respects and will fairly present the funding status of such
Plan as of the date set forth therein, and since the date of such
Schedule B there shall have been no material adverse change in such
funding status.
(m) Neither the Borrower nor any of its ERISA Affiliates (other
than one considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Internal Revenue Code) has incurred or is
reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan.
(n) Neither the Borrower nor any of its ERISA Affiliates (other
than one considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Internal Revenue Code) has been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA, and, to the best of the Borrower's knowledge, no such
Multiemployer Plan is reasonably expected to be in reorganization or to
be terminated, within the meaning of Title IV of ERISA.
(o) The Borrower and its Subsidiaries have no material liability
not reflected on the Borrower's financial statements with respect to
"expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
(p) Neither the Borrower nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940,
46
as amended. Neither the making of any Advances nor the application of
the proceeds or repayment thereof by the Borrower, nor the consummation
of the other transactions contemplated hereby, will violate any
provision of such Act or any rule, regulation or order of the Securities
and Exchange Commission thereunder.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will, unless the Required Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to comply with
any applicable laws, rules, regulations or orders to the extent the
applicability thereof to the Borrower is being contested in good faith
and by proper proceedings and appropriate reserves are being maintained
with respect to such circumstances in accordance with GAAP.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim
that is being contested in good faith and by proper proceedings and as
to which appropriate reserves are being maintained in accordance with
GAAP.
(c) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and exercise its best efforts to cause all lessees and
other Persons occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental
Permits applicable to its operations and properties; obtain and renew
all Environmental Permits necessary for its operations and properties
except to the extent that the failure to obtain or renew any of such
Environmental Permits could not reasonably be expected to have a
Material Adverse Effect; and conduct, and cause each of its Subsidiaries
to conduct, any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to
remove and clean up all Hazardous
47
Materials from any of its properties, in accordance with the
requirements of all applicable Environmental Laws; provided, however,
that neither the Borrower nor any of its Subsidiaries shall be required
to undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith and
by proper proceedings and reserves appropriate in the reasonable
judgment of the Borrower and its accountants are being maintained with
respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, material rights (charter and statutory) and
material franchises; provided, however, that the Borrower and its
Subsidiaries may consummate any merger or consolidation or liquidation
permitted under Section 5.02(e) and provided further that neither the
Borrower nor any of its Subsidiaries shall be required to preserve any
right or franchise if the Board of Directors of the Borrower or such
Subsidiary shall reasonably determine that the preservation thereof is
no longer desirable in the conduct of the business of the Borrower or
such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower, such Subsidiary
or the Lenders.
(f) Visitation Rights. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the
Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants.
(g) Preparation of Environmental Reports. If a Default caused by
reason of breach of Section 4.01(f) with respect to environmental
matters (including, without limitation, with respect to any
Environmental Action), (h), (i) or (j) or 5.01(c) shall have occurred
and be continuing, at the reasonable request of the Required Lenders
through the Agent, provide to the Lenders within 75 days after such
request, at the expense of the Borrower, an environmental site
assessment report for the properties described in such request, prepared
by an environmental consulting firm acceptable to the Agent, indicating
the presence or absence of Hazardous Materials and the estimated cost of
any compliance, removal or remedial action in connection with any
Hazardous Materials on such properties.
48
(h) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(i) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are material in the conduct of its business in good
working order and condition, ordinary wear and tear excepted; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to maintain and preserve any such property if the Board of
Directors of the Borrower or such Subsidiary shall reasonably determine
that the maintenance and preservation thereof is no longer desirable in
the conduct of the business of the Borrower or such Subsidiary, as the
case may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lenders.
(j) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform in all material respects all obligations in respect of
all leases of real property material to the business of the Borrower or
any of its Subsidiaries, keep all leases of real property in full force
and effect and not allow such leases to lapse or be terminated or any
rights to renew such leases to be forfeited or cancelled except where
the failure to do so could not reasonably be expected to have a Material
Adverse Effect, notify the Agent of any material default by any party
with respect to such leases and cooperate with the Agent in all material
respects to cure any such default, and cause each of its Subsidiaries to
do so.
(k) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, (i) other than with respect to transactions
between the Borrower and its wholly owned Subsidiaries or between wholly
owned Subsidiaries, all transactions otherwise permitted under this
Agreement with any of their Affiliates, Cyanamid or American Home
Products on terms that are fair and reasonable and no less favorable to
the Borrower or such Subsidiary than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate, Cyanamid or
American Home Products, other than as described on Schedule 5.01(k), and
(ii) with respect to transactions between the Borrower and its wholly
owned Subsidiaries, all transactions otherwise permitted under this
Agreement on terms that are no less favorable to the Borrower than it
would obtain in a comparable arm's-length transaction with a Person not
an Affiliate except where failure to do so could not reasonably be
expected to have a Material Adverse Effect, provided, however, that the
Borrower shall not engage in any transaction with any such Subsidiary
that would render such Subsidiary insolvent or cause a default under, or
a breach of, any material contract to which such Subsidiary is a party.
49
(l) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, Consolidated balance sheets of the Borrower
and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by the
chief financial officer of the Borrower and a certificate of the
chief financial officer of the Borrower as to compliance with the
terms of this Agreement, setting forth in reasonable detail the
calculations and other information necessary to demonstrate
compliance with Section 5.03 and, if requested by the Required
Lenders through the Agent, setting forth in reasonable detail the
calculations and other information necessary to demonstrate
compliance with Sections 5.02 (a), (b), (c) and (d);
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its
Subsidiaries, containing Consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as of the end of such
fiscal year and Consolidated and consolidating statements of
income and a Consolidated statement of cash flows, in each case,
of the Borrower and its Subsidiaries for such fiscal year, in
each case accompanied by an unqualified opinion by KPMG Peat
Marwick or other independent public accountants of recognized
national standing acceptable to the Required Lenders and a
certificate of the chief financial officer of the Borrower as to
compliance with the terms of this Agreement, setting forth in
reasonable detail the calculations and other information
necessary to demonstrate compliance with Section 5.03 and, if
requested by the Required Lenders through the Agent, setting
forth in reasonable detail the calculations and other information
necessary to demonstrate compliance with Sections 5.02(a), (b),
(c) and (d);
(iii) as soon as possible and in any event within three
Business Days after an officer of the Borrower or, with respect
to ERISA matters, the employee of the Borrower responsible for
such matters or, with respect to ERISA matters of an ERISA
Affiliate, the employee of such ERISA Affiliate responsible for
such matters, knows or should know of the occurrence of each
Default, continuing on the date of such statement, a statement of
the chief financial officer of the Borrower setting forth details
of such Default and the action which the Borrower has taken and
proposes to take with respect thereto;
50
(iv) promptly after the sending or filing thereof, copies
of all reports which the Borrower sends to its securityholders
generally, and copies of all reports and registration statements
which the Borrower or any Subsidiary files with the Securities
and Exchange Commission or any national securities exchange
(other than registration statements filed on Form S-8);
(v) promptly after the filing or receiving thereof, copies
of any report or notice with respect to any Plan or Multiemployer
Plan which the Borrower or any Subsidiary files under ERISA with
the Internal Revenue Service or the PBGC or the U.S. Department
of Labor or which the Borrower or any Subsidiary receives from
such entity;
(vi) promptly after an officer of the Borrower knows or
should know of the occurrence thereof, notice of any condition or
occurrence on any property of the Borrower or any of its
Subsidiaries that results in a material noncompliance by or
material liability with respect to the Borrower or any of its
Subsidiaries with any applicable Environmental Law or
Environmental Permit or could reasonably be expected to (A) form
the basis of an Environmental Action against the Borrower or any
of its Subsidiaries or such property that could have a Material
Adverse Effect or (B) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability
under any Environmental Law that could have a Material Adverse
Effect;
(vii) promptly and in any event within 15 days after the
employee of the Borrower responsible for ERISA matters or the
employee of an ERISA Affiliate responsible for ERISA matters
knows or has reason to know that any ERISA Event has occurred, a
statement of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, that the
Borrower or such ERISA Affiliate has taken and proposes to take
with respect thereto;
(viii) promptly and in any event within two Business Days
after receipt thereof by the Borrower or any of its ERISA
Affiliates (other than one considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the Internal
Revenue Code), copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed to
administer any such Plan;
(ix) promptly and in any event within 30 days after the
filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form
5500 Series) with respect to each Plan;
(x) promptly and in any event within 10 Business Days
after receipt thereof by the Borrower or any of its ERISA
Affiliates (other than one considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Section 414 of the
51
Internal Revenue Code) from the sponsor of a Multiemployer Plan,
copies of each notice concerning (x) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (y) the reorganization
or termination, within the meaning of Title IV of ERISA, of any
such Multiemployer Plan or (z) the amount of liability incurred,
or that may be incurred, by the Borrower or any of its ERISA
Affiliates in connection with any event described in clause (x)
or (y); and
(xi) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not, without the written consent of the Required Lenders:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to
receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any property acquired
or held by the Borrower or any Subsidiary in the ordinary course
of business to secure the purchase price of such property or to
secure Debt (including, without limitation, Capitalized Leases)
incurred solely for the purpose of financing the acquisition or
improvement of such property, or Liens existing on such property
at the time of its acquisition or improvement (other than any
such Lien created in contemplation of such acquisition or
improvement) or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided, however,
that no such Lien shall extend to or cover any property other
than the property being acquired or improved (except to the
extent that construction financing may result in an encumbrance
on the underlying fee or leasehold), and no such extension,
renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the aggregate principal amount of
the Debt secured by the Liens referred to in this clause (ii)
shall not exceed at any time outstanding $15,000,000 (or the
equivalent thereof in any Foreign Currency, determined as of the
date such Debt is issued or incurred),
(iii) the Liens described on Schedule 5.02(a),
52
(iv) other Liens securing Debt outstanding in an aggregate
principal amount not to exceed $15,000,000 (or the equivalent
thereof in any Foreign Currency, determined as of the date such
Debt is issued or incurred),
(v) Liens upon or in any property of any Person that
becomes a Subsidiary of the Borrower after the date hereof that
are existing at the time such Person becomes a Subsidiary of the
Borrower (other than any such Lien created in contemplation of
such Person becoming a Subsidiary of the Borrower),
(vi) Liens on accounts receivable and other related assets
arising solely in connection with the sale or other disposition
of such accounts receivable pursuant to Section 5.02(c)(iv),
(vii) the replacement, extension or renewal of any Lien
permitted by clauses (ii), (iii), (iv) and (v) above upon or in
the same property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change in
any direct or contingent obligor) of the Debt secured thereby,
(viii) Liens on the assets of a Subsidiary of the
Borrower securing the obligations of such Subsidiary to the
Borrower or to another Subsidiary of the Borrower,
(ix) Liens on machinery and equipment of the Borrower
located in the State of Connecticut to secure performance of the
Borrower's grant obligations owing to the State of Connecticut or
any political subdivision thereof in an aggregate principal
amount not to exceed $2,500,000 from the date hereof, and
(x) Liens in respect of goods consigned to the Borrower or
any of its Subsidiaries in the ordinary course of business,
including, without limitation, goods which are the subject of
tolling agreements or manufacturing and servicing agreements to
which the Borrower or any of its Subsidiaries is a party;
provided that such Liens are limited to the goods so consigned
and the goods which are the subject of such agreements.
(b) Debt. Permit any of its Subsidiaries to create or suffer to
exist, and the Borrower shall use its best efforts to prohibit CYRO from
creating or suffering to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly owned
Subsidiary of the Borrower,
53
(ii) Debt of the Borrower's Subsidiaries existing on the
Effective Date and described on Schedule 5.02(b) (the "Existing
Debt"), and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, the Existing Debt, provided
that the terms of any such extending, refunding or refinancing
Debt, and of any agreement entered into and of any instrument
issued in connection therewith, are otherwise not prohibited by
this Agreement and provided further that the principal amount of
such Existing Debt shall not be increased above the principal
amount thereof (plus any undrawn lending commitments in respect
thereof) outstanding immediately prior to such extension,
refunding or refinancing, and the direct and contingent obligors
therefor shall not be changed, as a result of or in connection
with such extension, refunding or refinancing,
(iii) Debt of the Borrower's Subsidiaries secured by Liens
permitted by Section 5.02(a)(ii), (iv), (vii) or (ix) not to
exceed in the aggregate the amount set forth in such Section,
(iv) unsecured Debt of the Borrower's Subsidiaries
incurred in the ordinary course of business aggregating, on a
Consolidated basis, at any one time outstanding, not more than
$35,000,000 (or the equivalent thereof in any Foreign Currency,
determined as of the date such Debt is issued or incurred),
(v) Debt owed by any Subsidiary of the Borrower to the
Borrower or any other Subsidiary of the Borrower,
(vi) Debt of CYRO incurred in the ordinary course of
business (including, without limitation, in connection with
capital expenditures, acquisitions and partnership distributions)
aggregating not more than $65,000,000 (or the equivalent thereof
in any Foreign Currency, determined as of the date such Debt is
issued or incurred) at any one time outstanding,
(vii) Debt of any Person that becomes a Subsidiary of the
Borrower after the date hereof that is existing at the time such
Person becomes a Subsidiary of the Borrower (other than Debt
incurred in contemplation of such Person becoming a Subsidiary of
the Borrower),
(viii) indorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of
business,
(ix) Debt incurred in connection with the sale or other
disposition of accounts receivable pursuant to Section
5.02(c)(iv), and
54
(x) Debt of the Borrower's wholly owned Subsidiaries
incorporated after June 15, 1996 under the laws of Canada or any
province thereof incurred for the purpose of lending proceeds of
such Debt to other Subsidiaries of the Borrower aggregating, on a
Consolidated basis, at any time outstanding, not more that
$60,000,000 (or the equivalent thereof in any Foreign Currency,
determined as of the date such Debt is issued or incurred)."
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets, except (i) sales or
other dispositions of assets in the ordinary course of its business,
(ii) in a transaction authorized by subsection (e) of this Section,
(iii) sales of assets for fair value as determined in good faith by (A)
in the case of the sale of assets having a fair value of less than
$5,000,000 (or the equivalent thereof in any Foreign Currency,
determined as of the date such sale is made) in a single transaction or
a series of related transactions, the Executive Committee and (B) in the
case of the sale of assets having a fair value of $5,000,000 (or the
equivalent thereof in any Foreign Currency, determined as of the date
such sale is made) or more in a single transaction or a series of
related transactions, the Board of Directors of the Borrower, (iv) sales
of accounts receivable in an aggregate amount not to exceed $50,000,000
(or the equivalent thereof in any Foreign Currency, determined as of the
date such sale is made) at any time outstanding and (v) sales or other
dispositions of other assets for fair value in an aggregate amount not
to exceed $3,000,000 (or the equivalent thereof in any Foreign Currency,
determined as of the date such sale is made) in any calendar year;
provided, however, that notwithstanding the foregoing, the Borrower
shall not sell, lease, transfer or otherwise dispose of, and shall not
permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, all or substantially all of the assets of the Borrower and
its Subsidiaries, taken as a whole.
(d) Dividends, Etc. Declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of capital stock of the
Borrower, or purchase, redeem or otherwise acquire for value (or permit
any of its Subsidiaries to do so) any shares of any class of capital
stock of the Borrower or any warrants, rights or options to acquire any
such shares, now or hereafter outstanding, except that the Borrower may
(i) declare and make any dividend payment or other distribution payable
in common stock of the Borrower, (ii) declare or pay cash dividends to
its stockholders (other than the declaration and payment of cash
dividends on the Cyanamid Preferred Stock) and purchase, redeem or
otherwise acquire shares of its capital stock or warrants, rights or
options to acquire any such shares for cash solely out of 25% of net
income of the Borrower and its Subsidiaries arising after December 31,
1994 and computed on a cumulative Consolidated basis in accordance with
GAAP, (iii) purchase outstanding shares of its common or preferred stock
for an aggregate
55
amount not to exceed the sum of $15,000,000 plus the amount of net cash
proceeds from any future equity issuances, (iv) declare or pay cash
dividends on Cyanamid Preferred Stock and (v) redeem or purchase shares
of the Series A Preferred Stock and Series B Preferred Stock in
accordance with the terms and conditions set forth in the Series A
Certificate, in the case of a redemption or purchase of the Series A
Preferred Stock, and the Series B Certificate, in the case of a
redemption or purchase of the Series B Preferred Stock or, in the case
of any such redemption or purchase, in a transaction consented to by the
Lenders pursuant to Section 3.04; provided that, immediately after
giving effect to any such proposed action, no Event of Default, with
respect to any such proposed action described in clauses (i) and (ii)
above, and no Default, with respect to any proposed action described in
clauses (iii), (iv) and (v) above, would exist, provided, however, that
except as permitted by clause (iii) above, the Borrower shall not
declare or pay cash dividends to its stockholders on account of any
shares of its common stock or purchase, redeem or otherwise acquire
shares of its common stock or warrants, rights or options to acquire any
such shares for cash so long as the Consolidated "common equity" of the
Borrower and its Subsidiaries calculated in accordance with GAAP is less
than $85,000,000, provided further, however, that notwithstanding
anything else contained in this paragraph (d), the Borrower shall be
permitted to pay or make any dividend or distribution within 90 days
after the date of declaration thereof if at the time such dividend or
distribution was declared, such declaration was permitted pursuant to
the terms of this paragraph (d).
(e) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to any Person, or permit any
of its Subsidiaries to do so, except that any Subsidiary of the Borrower
may merge or consolidate with or into, or dispose of assets to, or
liquidate into, any other Subsidiary of the Borrower and except that any
Subsidiary of the Borrower may merge into or dispose of assets to or
liquidate into the Borrower and the Borrower may merge or consolidate
with or into, or liquidate into, any other Person, provided in each case
that, immediately after giving effect to such proposed transaction, no
Default would exist and in the case of any merger, consolidation or
liquidation to which the Borrower is a party, if the Borrower is not the
surviving entity, the Person into which the Borrower shall be merged or
formed by any such consolidation or liquidation shall assume the
Borrower's obligations hereunder and under the Notes in an agreement or
instrument reasonably satisfactory in form and substance to all of the
Lenders.
(f) Intentionally Omitted.
(g) Change in Nature of Business. Engage, or permit any of its
Subsidiaries to engage, in any business other than the businesses
carried on at the date hereof by the Borrower and its Subsidiaries and
businesses related thereto.
56
(h) Charter Amendments. Amend, or permit any of its Subsidiaries
to amend, its certificate of incorporation or bylaws in a manner
materially adverse to the rights and interests of the Agent and the
Lenders under this Agreement and the Notes.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
(j) Amendment, Etc. of Terms of the Cyanamid Preferred Stock.
Amend, modify or change in any manner any term or condition of the
Cyanamid Preferred Stock or take any other action in connection with the
Cyanamid Preferred Stock in either case that would materially impair the
value of the rights or interests of the Borrower thereunder or that
would materially impair the rights or interests of the Agent or any
Lender.
[(k) intentionally omitted]
(l) Hedge Agreements. Enter into Hedge Agreements, or permit its
Subsidiaries to do so, except with respect to interest rates (on fixed
rate or floating rate Delt with respect to which the Borrower is, or any
of its Subsidiaries are, exposed) and except to hedge against
fluctuations in currency exchange rates, in each case pursuant to
non-speculative Hedge Agreements entered into in the ordinary course of
business.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will, unless the Required Lenders otherwise consent in writing:
(a) Leverage Ratio. Maintain at all times a Leverage Ratio of
not greater than 0.55:1.
(b) Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
Ratio of not less than 3.00:1 for each period of four fiscal quarters of
the Borrower ending on March 31, June 30, September 30 and December 31
of each year.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
57
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable or the Borrower shall fail to pay
any interest on any Advance or make any other payment under this
Agreement or any Note within three Business Days after the same becomes
due and payable; or
(b) Any representation or warranty made by the Borrower herein or
by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 2.18, 5.01(e), (k) or
(l)(iii), (vi), (vii), (viii) or (x), 5.02 or 5.03, or (ii) any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed if such failure shall remain unremedied for 15
days after written notice thereof shall have been given to the Borrower
by the Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries or CYRO shall fail to
pay any principal of or premium or interest on or any other amount
payable in respect of any Debt or any Hedge Agreement which is
outstanding in a principal or notional amount of at least $10,000,000
(or the equivalent thereof in any Foreign Currency) in the aggregate
(but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary or CYRO (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt or Hedge Agreement; or any other event
shall occur or condition shall exist under any agreement or instrument
relating to any such Debt or Hedge Agreement and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt or Hedge
Agreement; or any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment, including, without limitation, a prepayment required in
connection with the sale of the sole asset or all assets securing such
Debt), redeemed, purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof; or
(e) The Borrower or any Material Subsidiary or CYRO shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall
be instituted by or against the Borrower or any Material Subsidiary or
CYRO seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its
58
debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period
of 60 days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or the
Borrower or any of its Subsidiaries or CYRO shall take any corporate
action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$5,000,000 (or the equivalent thereof in any Foreign Currency) shall be
rendered against the Borrower or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 10
consecutive days during which such judgment or order remains unpaid and
a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered against
the Borrower or any of its Subsidiaries that could be reasonably
expected to have a Material Adverse Effect, and there shall be any
period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(h) (i) Any Person (other than Cyanamid or American Home
Products) or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Borrower (or other
securities convertible into such Voting Stock) representing 20% or more
of the combined voting power of all Voting Stock of the Borrower; or
(ii) during any period of up to 24 consecutive months, commencing after
the Effective Date, individuals who at the beginning of such 24-month
period were directors of the Borrower shall cease for any reason to
constitute a majority of the board of directors of the Borrower (except
to the extent that individuals who were directors at the beginning of
such 24-month period were replaced by individuals (x) elected by a
majority of the remaining members of the board of directors of the
Borrower or (y) nominated for election by a majority of the remaining
members of the board of directors of the Borrower and thereafter elected
as directors by the shareholders of the Borrower), other than pursuant
to the terms of any agreement or instrument relating to the Cyanamid
Preferred Stock issued in connection with the Spin-Off; or (iii) any
Person (other than Cyanamid or American Home Products) or two
59
or more Persons acting in concert (other than members of the Borrower's
management that have entered into employment agreements with the
Borrower solely to the extent such employment agreements require or
permit them to exercise a controlling influence over the management or
policies of the Borrower) shall have acquired by contract or otherwise,
or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, the power to
exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(i) Any ERISA Event shall have occurred that could reasonably be
expected to result in a liability of the Borrower or any of its ERISA
Affiliates to the PBGC or any Plan and the sum (determined as of the
date of occurrence of such ERISA Event) of the Insufficiency of the Plan
with respect to which such ERISA Event shall have occurred and the
Insufficiency of any and all other Plans with respect to which an ERISA
Event shall have occurred and then exist (or the liability of the
Borrower and its ERISA Affiliates related to any such ERISA Event)
exceeds $5,000,000; or
(j) The Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan for which the Borrower
could reasonably be expected to become liable in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Borrower and its ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification), exceeds $5,000,000 or
requires payments exceeding $1,000,000 per annum; or
(k) The Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, the Borrower could reasonably be expected to become
liable in connection with such reorganization or termination and as a
result of such reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $1,000,000;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be
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forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Federal Bankruptcy Code, (A)
the obligation of each Lender to make Advances shall automatically be terminated
and (B) the Notes, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action which exposes the Agent to personal liability or which is contrary to
this Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender which is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(v) shall
61
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any of its Subsidiaries and any Person who may
do business with or own securities of the Borrower or any such Subsidiary, all
as if Citibank were not the Agent and without any duty to account therefor to
the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the
Designated Bidders) agree to indemnify the Agent (to the extent not reimbursed
by the Borrower), ratably according to the respective principal amounts of the
Revolving Notes then held by each of them (or if no Revolving Notes are at the
time outstanding or if any Revolving Notes are held by Persons which are not
Lenders, ratably according to the respective amounts of their Commitments), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by the Agent under this Agreement, provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender (other than the Designated Bidders)
agrees to reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice
62
in respect of rights or responsibilities under, this Agreement, to the extent
that the Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Agent with the consent of the Borrower (which consent shall not be unreasonably
withheld or delayed). If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$50,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Notes, nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders (other than the
Designated Bidders), do any of the following: (i) waive any of the conditions
specified in Section 3.01, 3.02 or 3.04 (ii) increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (iii) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Revolving Notes, or the number of Lenders, which shall be required for the
Lenders or any of them to take any action hereunder or (iv) amend this Section
8.01 and (b) no amendment, waiver or consent shall, unless in writing and signed
by the Required Lenders and each affected Lender (other than the Designated
Bidders), do any of the following: (i) reduce the principal of, or interest on,
the Revolving Notes or any fees or other amounts payable hereunder or (ii)
postpone any date fixed for any scheduled payment of principal of, or interest
on, the Revolving Notes or any fees or other amounts payable hereunder; provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required above to take such action,
affect the rights or duties of the Agent under this
63
Agreement or any Revolving Note. No amendment or waiver of any provision of any
Competitive Bid Note or the terms and conditions of any Offer or any Competitive
Bid Advance accepted by the Borrower in writing pursuant to Section
2.15(a)(iii)(y), nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Lender payee of such Competitive Bid Note or the Lender which has made, or
offers to make, such Competitive Bid Advance, as the case may be, and then any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at Five ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer; if to any Bank, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chemicals
Department, North American Global Finance Group; or, as to the Borrower or the
Agent, at such other address as shall be designated by such party in a written
notice to the other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the Borrower and the
Agent. All such notices and communications shall, when mailed, telecopied,
telegraphed, telexed or cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by telex answerback or
delivered to the cable company, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay
on demand all costs and expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all reasonable due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer,
duplication, consultant, and audit expenses and (B) the reasonable fees and
out-of-pocket expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without
64
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent
and each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with (i) the Notes, this Agreement
or the transactions contemplated hereby or (ii) the actual or alleged presence
of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, in each case whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated (but excluding any such claim, damage, loss,
liability or expense of any Indemnified Party (i) to the extent such claim,
damage, loss, liability or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct or (ii) arising from a successful
claim by the Borrower against such Indemnified Party). The Borrower also agrees
not to assert any claim against the Agent, any Lender, any of their Affiliates,
or any of their respective directors, officers, employees, attorneys and agents,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of or otherwise
relating to any of the transactions contemplated herein or in any other Loan
Document or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion or
Redenomination of, any Eurocurrency Rate Advance or LIBO Rate Advance is made by
the Borrower to or for the account of a Lender other than on the last day of the
Interest Period for such Advance, as a result of a payment or Conversion or
Redenomination pursuant to Section 2.07(d), 2.08, 2.09, 2.11 or 2.16,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment or Conversion
or Redenomination, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
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SECTION 8.05. Right of Setoff. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to setoff and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such setoff and application, provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of setoff)
which such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.15, which shall only become effective
upon satisfaction of the conditions precedent set forth in Article III) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Bank that such Bank has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Agent and
each Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments, Designations and Participations. (a)
Each Lender (other than the Designated Bidders) may and, if demanded by the
Borrower (following a demand by such Lender pursuant to Section 2.10 or 2.13 or
following the failure of such Lender to consent, if required under Section 3.04,
to the redemption or purchase of the Series A Preferred Stock or the Series B
Preferred Stock) upon at least 10 Business Days' notice to such Lender and the
Agent, will assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Revolving Advances owing to it and the Revolving
Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement (other than any right to make Competitive Bid
Advances, Competitive Bid Advances owing to it and Competitive Bid Notes), (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 and shall be an integral multiple of
$1,000,000, (iii) if the assigning Lender is
66
assigning less than all of its Commitment, such assigning Lender shall retain a
Commitment of at least $5,000,000, (iv) each such assignment shall be to an
Eligible Assignee, (v) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Revolving Note or Notes subject to
such assignment and a processing and recordation fee of $2,500, (vi) each such
assignment made as a result of a demand by the Borrower pursuant to this Section
8.07(a) shall be arranged by the Borrower after consultation with the Agent and
shall be either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (vii) no Lender shall be obligated to
make any such assignment as a result of a demand by the Borrower pursuant to
this Section 8.07(a) unless and until such Lender shall have received one or
more payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Revolving Advances owing to such Lender, together with accrued interest
thereon to the date of payment of such principal amount and all other amounts
payable to such Lender under this Agreement and (viii) upon each such assignment
made as a result of a demand by the Borrower pursuant to this Section 8.07(a) to
an Eligible Assignee which is not, before giving effect to such assignment, a
Lender, the Borrower shall pay to the Agent a $2,500 administration fee. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and
67
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent (A) in exchange for the surrendered Revolving
Note or Notes a new Revolving Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new Revolving Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder and (B) if such Eligible Assignee was
not a Lender before giving effect to such Assignment and Acceptance, a new
Competitive Bid Note to the order of such Eligible Assignee. Such new Revolving
Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Revolving Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto. Such new Competitive Bid Note
shall be in an aggregate principal amount equal to the aggregate Commitments of
the Lenders hereunder, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A-2
hereto.
(d) Each Lender (other than the Designated Bidders) may designate
one or more banks or other entities to have a right to make Competitive Bid
Advances as a Lender pursuant to Section 2.15; provided, however, that (i) no
such Lender shall be entitled to make more than 2 such designations, (ii) each
such Lender making one or more of such designations shall retain the right to
make Competitive Bid Advances as a Lender pursuant to Section 2.15, (iii) each
such designation shall be to a Designated Bidder and (iv) the parties to each
such designation shall execute and deliver to the Agent, for its acceptance and
recording in the Register, a Designation Agreement. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Designation Agreement, the designee thereunder shall be a party
68
hereto with a right to make Competitive Bid Advances as a Lender pursuant to
Section 2.15 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the
Lender making the designation thereunder and its designee thereunder confirm and
agree with each other and the other parties hereto as follows: (i) such Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such designee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Designation Agreement; (iv) such designee will, independently and without
reliance upon the Agent, such designating Lender or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such designee confirms that it is a Designated Bidder; (vi)
such designee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such designee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Agent shall, if such Designation Agreement has been completed and is
substantially in the form of Exhibit D hereto, (i) accept such Designation
Agreement, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, and before any Competitive Bid Advance shall
be made by such designee pursuant to Section 2.15, the Borrower, at its own
expense, shall execute and deliver to the Agent a new Competitive Bid Note to
the order of such designee, which new Competitive Bid Note shall be in an
aggregate principal amount equal to the aggregate Commitments of the Lenders
hereunder, shall be dated the effective date of such Designation Agreement and
shall otherwise be in substantially the form of Exhibit A-2 hereto.
(g) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance and each Designation
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and, with respect
69
to Lenders other than Designated Bidders, the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(h) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(i) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrower received by it from such Lender.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. (a) Neither the Agent nor any
Lender shall disclose any Confidential Information to any Person without the
consent of the Borrower, other
70
than (i) to the Agent's or such Lender's Affiliates and their officers,
directors, employees, agents and advisors and to actual or prospective Eligible
Assignees and participants, and then only on a confidential basis, (ii) as
required by any law, rule or regulation or judicial process, provided that the
Agent or such Lender, as the case may be, shall give prior notice thereof to the
Borrower when practicable, and (iii) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
(b) Each Lender agrees that it will use the Confidential
Information only in connection with this Agreement (and any refinancings
hereof), the Advances made by it hereunder, its Commitment, the transactions
contemplated hereby and other transactions with the Borrower and any of its
Subsidiaries.
SECTION 8.09. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
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 the Notes, 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 any 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 any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that 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 or the Notes
in any New York State court or federal court of the United States of America
sitting in New York City. Each of the parties hereto hereby irrevocably waives,
to the fullest extent
71
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
SECTION 8.12. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Notes in any currency (the "Original Currency") into another currency (the
"Other Currency") the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the Original
Currency with the Other Currency at 9:00 A.M. (New York City time) on the first
Business Day preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due in
the Original Currency from it to any Lender or the Agent hereunder or under the
Note or Notes held by such Lender shall, notwithstanding any judgment in any
Other Currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Agent (as the case may be) of any sum
adjudged to be so due in such Other Currency, such Lender or the Agent (as the
case may be) may in accordance with normal banking procedures purchase Dollars
with such Other Currency; if the amount of Dollars so purchased is less than the
sum originally due to such Lender or the Agent (as the case may be) in the
Original Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the
case may be) against such loss, and if the amount of Dollars so purchased
exceeds the sum originally due to any Lender or the Agent (as the case may be)
in the Original Currency, such Lender or the Agent (as the case may be) agrees
to remit to the Borrower such excess.
SECTION 8.13. Effective Date Assignments; Etc. (a) As of the
Effective Date, prior to giving effect to any assignment under this Agreement as
of such date, each Existing Lender represents and warrants, as to the assignment
effected by such Existing Lender by this Agreement that as of the Effective Date
(i) its Existing Commitment is in the dollar amount specified as its Existing
Commitment on Schedule 8.13 hereto and the aggregate outstanding principal
amount of Existing Advances owing to it is in the dollar amount specified as the
aggregate outstanding principal amount of Existing Advances owing to such
Existing Lender on Schedule 8.13 hereto; and (ii) that such Existing Lender is
the legal and beneficial owner of such interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim created by such
Existing Lender.
(b) Each Existing Lender and Bank confirms to, and agrees with,
each of the other Banks as to the assignment effected by this Agreement by such
Existing Lender or Bank, as the case may be, as follows: (i) each such Existing
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Original Credit Agreement or this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Original Credit
72
Agreement or this Agreement or any other instrument or document furnished
pursuant thereto or hereto; (ii) each such Existing Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any of its Subsidiaries or the
performance of observance by the Borrower or any of its Subsidiaries of any of
its obligations under the Original Credit Agreement or this Agreement or any
other instrument or document furnished pursuant thereto or hereto; (iii) each
Bank confirms that it has received such documents and information as it has
deemed appropriate to make its own credit analysis and decision to execute and
deliver this Agreement and agrees that it shall have no recourse against the
Agent, any Existing Lender or any other Lender with respect to any matters
relating to the Original Credit Agreement or this Agreement; and (iv) each Bank
will, independently and without reliance upon the Agent, any Existing 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, the Note or Notes held by it and the
other documents executed in connection herewith.
(c) As of the Effective Date, (i) each Bank shall be a party to
this Agreement and, to the extent provided herein, have the rights and
obligations of a Lender hereunder and (ii) each Existing Lender shall, to the
extent provided herein, relinquish its rights and be released from its
obligations under this Agreement as to any assignment effected herein.
(d) From and after the Effective Date, the Agent shall make all
payments under this Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Banks and other Lenders hereunder.
(e) On or before the Effective Date, the Borrower shall have paid
all accrued interest, fees and other amounts payable and owing to the Existing
Lenders and the Agent (as defined in the Original Credit Agreement) as of the
Effective Date in connection with the Original Credit Agreement. Without
prejudice to the survival of any other agreement of the Borrower under the
Original Credit Agreement, all amounts that would be payable under Sections
2.10, 2.13 and 8.04 of the Original Credit Agreement shall be payable under this
Agreement to the extent that such amounts have not been paid as of the Effective
Date.
(f) As of the Effective Date, (i) the Original Credit Agreement
is amended and restated in full as set forth in this Agreement, (ii) the
Existing Commitments are terminated, (iii) the Notes (as defined in the Original
Credit Agreement) are cancelled and replaced by the Notes, (iv) all obligations
which, by the terms of the Original Credit Agreement, are evidenced by the Notes
(as defined in the Original Credit Agreement) are evidenced by the Notes and (v)
no fees shall be payable by the Borrower pursuant to Section 2.03(a) of the
Original Credit Agreement, except to the extent that such fees become due and
payable, and remain unpaid, on or prior to the Effective Date.
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SECTION 8.14. Waiver of Jury Trial. Each of the Borrower, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CYTEC INDUSTRIES INC.
By /s/ ▇.▇. ▇▇▇▇▇▇
---------------------------------
Title: Executive Vice President
& Chief Financial Officer
[signed copies of the credit
agreement and each amendment
thereto are on file at the offices
of the Company]
CITIBANK, N.A.,
as Agent
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
$150,000,000 Total of the Commitments
Commitment Banks
$32,500,000 CITIBANK, N.A.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
74
$22,500,000 CORESTATES BANK, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice President
$20,000,000 CREDIT LYONNAIS
NEW YORK BRANCH
By /s/ ▇▇▇▇ ▇.▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
$22,500,000 FIRST UNION NATIONAL BANK
By /s/▇▇▇▇▇ ▇▇▇ ▇▇▇
---------------------------------
Title: Assistant
$30,000,000 MELLON BANK, N.A.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President
22,500,000 PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Vice President