EXHIBIT 10.13
CONFORMED COPY
U.S. $200,000,000
364-DAY CREDIT AGREEMENT
Dated as of September 23, 1997
Among
CYTEC INDUSTRIES INC.,
as Borrower,
and
THE BANKS NAMED HEREIN,
as Banks,
and
CITIBANK, N.A.,
as Agent
Section Page
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 17
1.03. Accounting Terms 17
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Revolving Advances 17
2.02. Making the Revolving Advances 18
2.03. Fees 19
2.04. Reduction or Termination of the Commitments 20
2.05. Repayment of Revolving Advances 20
2.06. Interest on Revolving Advances 20
2.07. Interest Rate Determination 21
2.08. Voluntary Conversion of Revolving Advances 22
2.09. Prepayments of Revolving Advances 22
2.10. Increased Costs 23
2.11. Illegality 24
2.12. Payments and Computations 25
2.13. Taxes 26
2.14. Sharing of Payments, Etc. 28
2.15. The Competitive Bid Advances 29
2.16. Additional Interest on Eurodollar Rate Advances 34
2.17. Evidence of Debt 34
2.18. Use of Proceeds 35
Section Page
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ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.15 35
3.02. Additional Conditions Precedent to Effectiveness 37
3.03. Conditions Precedent to Each Revolving Borrowing 37
3.04. Conditions Precedent to Each Competitive Bid Borrowing
38
3.05. Determinations Under Sections 3.01 and 3.02 38
3.06. Notice of Effective Date 38
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower 39
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants 42
5.02. Negative Covenants 47
5.03. Financial Covenants 51
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default 51
ARTICLE VII
THE AGENT
7.01. Authorization and Action 55
7.02. Agent's Reliance, Etc. 55
7.03. Citibank and Affiliates 55
Section Page
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7.04. Lender Credit Decision 56
7.05. Indemnification 56
7.06. Successor Agent 56
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc. 57
8.02. Notices, Etc. 57
8.03. No Waiver; Remedies 58
8.04. Costs and Expenses 58
8.05. Right of Setoff 59
8.06. Binding Effect 60
8.07. Assignments, Designations and Participations 60
8.08. Confidentiality 64
8.09. Governing Law 65
8.10. Execution in Counterparts 65
8.11. Jurisdiction, Etc. 65
8.12. Waiver of Jury Trial 66
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(j) - Transactions with Affiliates
Schedule 5.02(a) - Existing Liens
Schedule 5.02(b) - Existing Debt
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-1 - Form of Opinion of Special New York Counsel
to the Borrower
Exhibit E-2 - Form of Opinion of General Counsel of the
Borrower
The Company agrees to furnish supplementally to the Commission upon its
request, any and all of the foregoing schedules and exhibits.
364-DAY CREDIT AGREEMENT
Dated as of September 23, 1997
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:
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):
"Acquisition" has the meaning specified in Section 2.18.
"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 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
20% or more of the Voting Stock of such Person.
"Agreement Value" means, for any Hedge Agreement on any date of
determination, the amount, if any, that would be payable to the Hedge Bank party
to such Hedge Agreement in respect of "agreement value" as though such Hedge
Agreement were terminated on such date, calculated as provided in such Hedge
Agreement.
"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 Eurodollar Lending Office in the case of a Eurodollar
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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, as of any date of determination within
either period set forth below, a percentage per annum determined by reference to
the Public Debt Rating in effect on such date during such period as set forth
below:
================================================================================
Applicable Applicable
Margin Prior Margin from
to the Term the Term
Loan Loan
Public Debt Rating Conversion Conversion
(S&P/▇▇▇▇▇'▇) Date Date
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .170% .220%
-------
A/A2 or Above
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .205% .275%
-------
Lower than A/A2 but at least
BBB+/Baa1
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .235% .325%
-------
Lower than BBB+/Baa1 but at least
--------------------------------------------------------------------------------
BBB/Baa2
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .290% .400%
-------
Lower than BBB/Baa2 but at least
BBB-/Baa3
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .340% .500%
-------
Lower than BBB-/Baa3 or no Public
Debt Rating in effect
================================================================================
"Applicable Percentage" means, as of any date of determination, a
percentage per annum determined by reference to the Public Debt Rating in
effect on such date as set forth below:
--------------------------------------------------------------------------------
Public Debt Rating Applicable Percentage
(S&P/▇▇▇▇▇'▇)
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .050%
-------
A/A2 or Above
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .070%
-------
Lower than A/A2 but at least BBB+/Baa1
--------------------------------------------------------------------------------
2
Level 3 .090%
-------
Lower than BBB+/Baa1 but at least BBB/Baa2
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .110%
-------
Lower than BBB/Baa2 but at least BBB-/Baa3
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇ .160%
-------
Lower than BBB-/Baa3 or no Public Debt Rating
in effect
------------------------------------------------------------------------------
"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.
"Acquired Debt" has the meaning specified in Section 5.02(b)(vi).
"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 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
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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 Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"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.
"Commitment Termination Date" means the earlier of September 22, 1998
and the date of termination in whole of the Commitments pursuant to Section
2.04 or 6.01.
"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.
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"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"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 Eurodollar 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.
"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 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
5
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.
"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, (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
6
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.
"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
7
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.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar 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 Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Revolving Borrowing, an interest rate
per annum equal to 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
Citibank's Eurodollar Rate Advance comprising part of such Revolving Borrowing
to be outstanding during such Interest Period and for a period equal to such
Interest Period.
"Eurodollar Rate Advance" means a Revolving Advance denominated in
Dollars which bears interest as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for any
Interest Period for all Eurodollar Rate Advances or LIBO Rate Advances
8
comprising part of the same Borrowing means the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or
other marginal reserve requirement) for such Lender 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 Eurodollar 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.
"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.
"Fiberite" means Fiberite, Inc., a Delaware corporation.
"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 C
Preferred Stock, in each case, during such period.
"Fixed Rate Advance" has the meaning specified in Section
2.15(a)(i).
"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
9
its terms matures more than one 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).
"Hedge Bank" means any financial institution with which the Borrower
has entered into a Hedge Agreement.
"Holdings" means Fiberite Holdings, Inc., a Delaware corporation.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"Interest Period" means, for each Eurodollar 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 Eurodollar Rate Advance or LIBO Rate Advance or the date of the Conversion
of any Base Rate Advance into such Eurodollar 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 Eurodollar 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
10
ends after the Commitment Termination Date or, if the Borrower has
exercised its election to convert the Revolving Advances to a term loan
pursuant to Section 2.05 prior to the time of such selection, which
ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurodollar 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.
"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.
"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 at which deposits in Dollars are offered by
the principal office of Citibank in ▇▇▇▇▇▇,
▇▇
▇▇▇▇▇▇▇ to prime banks in the London interbank market at 11:00EA.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.
"LIBO Rate Advance" has the meaning specified in Section
2.15(a)(i).
"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.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations or properties of the
Borrower and its Subsidiaries taken as a whole; it being agreed that neither
the failure to consummate (or delay in consummating) the Acquisition, nor any
failure to obtain (or delay in obtaining) any necessary consent or approval in
connection therewith or satisfaction of any condition thereto (including
without limitation any failure to obtain or delay in obtaining the expiration
or termination of any waiting period under the HSR Act or any similar foreign
law or regulation), shall constitute a Material Adverse Change, notwithstanding
that the consideration payable in connection with the Acquisition shall have
been funded.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations or properties 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 3% 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 3% 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.
"Maturity Date" means the earlier of (a) the date specified as such in
the notice delivered by the Borrower pursuant to Section 2.05 which date shall
be no later than the second anniversary of the earlier of (i) the Term Loan
Conversion Date and (ii) the Commitment Termination Date and (b) the date of
the termination in whole of the Commitments pursuant to Section 2.04 or 6.01.
12
"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.
"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).
"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 30 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, $10,000,000 (or the equivalent
thereof in any Foreign 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,
13
zoning restrictions, rights of way and other encumbrances on title to real
property that do not render title to 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.
"Public Debt Rating" means, as of any date of determination, the higher
of the ratings most recently announced by S&P and Moody's for any class of
non-credit enhanced long term senior unsecured public debt issued by the
Borrower or, if no such ratings have been announced, the rating most recently
assigned by S&P or Moody's, as the case may be, to the Borrower's "implied
senior debt", as notified in writing from S&P or Moody's, as the case may be,
to the Borrower. For purposes of the foregoing, (a) if only one of S&P and
Moody's shall have in effect a Public Debt Rating, the Applicable Margin and
the Applicable Percentage shall be determined by reference to the available
rating; (b) if neither S&P nor Moody's shall have in effect a Public Debt
Rating, the Applicable Margin and Applicable Percentage will be set in
accordance with level 5 under the definition of "Applicable Margin" or
"Applicable Percentage", as the case may be; (c) if the ratings established by
S&P and Moody's shall fall within different levels, the Applicable Margin and
the Applicable Percentage shall be based upon the higher rating, except that in
the event that the lower of such ratings is more than one level below the
higher of such ratings, the Applicable Margin and the Applicable Percentage
will be determined based on the level immediately above the lower of such
ratings; (d) if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are established each reference
to the Public Debt Rating announced by S&P or Moody's, as the case may be,
shall refer to the then equivalent rating by S&P or Moody's, as the case may
be.
"Register" has the meaning specified in Section 8.07(g).
14
"Responsible Officer" of any corporation means any executive officer,
treasurer or controller of such corporation and any other officer thereof
responsible for the administration of the obligations of such corporation in
respect of this Agreement.
"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
Eurodollar Rate Advance (each of which shall be a "Type" of Revolving Advance).
The conversion of Revolving Advances to a term loan pursuant to the Term Loan
Election shall not be construed to alter their character as "Revolving
Advances" for purposes of this Agreement, the Revolving Notes or any Assignment
and Acceptance.
"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.
"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 The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"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 amended.
"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.
15
"Subsidiary" of any Person means any corporation, limited liability
company, partnership, joint venture, trust or estate (i)Ethat is, in accordance
with GAAP, Consolidated in the Consolidated financial statements of the
Borrower or (ii)of which (or 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.
"Term Loan Conversion Date" means the date, on or prior to the
Commitment Termination Date, on which all Revolving Advances outstanding on
such date are converted into a term loan pursuant to Section 2.05.
"Term Loan Election" has the meaning specified in Section 2.05.
"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.
"Type" has the meaning specified in the definition of "Revolving
Advance".
"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
16
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".
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).
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Advances. 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 Commitment Termination Date in an aggregate
amount 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
17
Lenders ratably according to their respective Commitments (such deemed use of
the aggregate amount of the Commitments being a "Competitive Bid Reduction").
Each Revolving Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 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. Within the limits of
each Lender's Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to SectionE2.09(b) and reborrow under this Section 2.01
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 Eurodollar Rate Advances, 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 ExhibitEB-1
hereto, specifying therein (i) the requested date of such Revolving Borrowing,
(ii) the requested Type of Revolving Advances comprising such Revolving
Borrowing, (iii) the requested aggregate amount of such Revolving Borrowing and
(iv) in the case of a Revolving Borrowing comprised of Eurodollar Rate Advances,
the requested Interest Period for each such Revolving Advance.
Each Lender shall, before 11:00A.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 at its address referred to in Section
8.02, in same day funds, such Lender's ratable portion of such Revolving
Borrowing. 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.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for any
Revolving Borrowing if the aggregate amount of such Revolving Borrowing is less
than $5,000,000 or if the obligation of the Lenders to make Eurodollar 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
18
Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Revolving Borrowing
for such Revolving Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the 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 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 earlier
of the Term Loan Conversion Date and the Commitment Termination Date at a rate
per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing September 30, 1997, and
19
on the earlier of the Term Loan Conversion Date and the Commitment
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. (a)
-------------------------------------------
Optional. 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.
(b) Mandatory. On the Term Loan Conversion Date, and from time
to time thereafter upon each prepayment of the Advances, the aggregate
Commitments of the Lenders under this Agreement shall be automatically and
permanently reduced on a pro rata basis by an amount equal to the amount by
which the aggregate Commitments of the Lenders under this Agreement immediately
prior to such reduction exceeds the aggregate unpaid principal amount of the
Advances outstanding at such time.
SECTION 2.05. Repayment of Revolving Advances. The Borrower
shall, subject to the next succeeding sentence, repay to the Agent in full for
the ratable account of the Lenders on the Commitment Termination Date the
aggregate principal amount of the Revolving Advances outstanding on such date.
The Borrower may, upon not less than 15 days' notice to the Agent, elect (the
"Term Loan Election") on or prior to the Commitment Termination Date to convert
all of the Revolving Advances then outstanding into a term loan which the
Borrower shall repay to the Agent in full for the ratable account of the Lenders
on the Maturity Date, provided that no Default has occurred and is continuing on
the date of notice of the Term Loan Election or on the Term Loan Conversion Date
on which such election is to be effected.
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 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) Eurodollar Rate Advances. During such periods as such
20
Revolving Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Revolving Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Revolving Advance plus
(y) the Applicable Margin in effect on the first day of such Interest Period
or, if later, the Term Loan Conversion Date, 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 Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on
(i)Ethe 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)Ethe 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 Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar 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 Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon,
(i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance,
and
(ii) the obligation of the Lenders to make, or to Convert Revolving
Advances into, Eurodollar 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 Eurodollar 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.
21
(d) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000, 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
Eurodollar Rate Advances, into Revolving Advances with a different Interest
Period; provided, however, that in the event of any Conversion of Eurodollar
Rate Advances into Base Rate Advances or Eurodollar Rate Advances with a
different Interest Period on a day other than the last day of an Interest Period
for the Eurodollar Rate Advances being Converted, the Borrower shall reimburse
the Lenders in respect of such Eurodollar Rate Advances to the extent required
by Section 8.04(c) and any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
SectionE2.02(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 Eurodollar 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 Eurodollar Rate Advances, and one Business Day's notice
given not later than 11:00 A.M. (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 an integral multiple of $1,000,000
in excess thereof and (y) in the event of any such prepayment of a Eurodollar
Rate Advance, the Borrower shall be obligated to reimburse the Lenders in
respect thereof to the extent required by Section 8.04(c).
(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
22
the Lenders on such Business Day. The Agent shall give prompt notice of any
prepayment required under this Section 2.09(c) to the Borrower and the Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change (including any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation, with respect
to any Eurodollar 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
Eurodollar 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 Eurodollar Rate Advance or LIBO Rate
Advance, then the 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 subsectionE(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
23
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
paragraphE(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 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
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or LIBO Rate Advances or to fund or maintain Eurodollar
Rate Advances or LIBO Rate Advances hereunder, (i) the obligation of such Lender
to make Eurodollar Rate Advances or LIBO Rate Advances, as the case may be, or
to Convert Revolving Advances into Eurodollar Rate Advances shall be suspended,
whereupon any request by the Borrower for a Borrowing comprised of Eurodollar
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 Eurodollar Rate Advances and LIBO
Rate Advances, as the case may be, made by it be Converted to Base Rate
Advances, in which event all such Eurodollar Rate Advances and LIBO Rate
Advances, as the case may be, shall be
24
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 Eurodollar 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 Eurodollar Rate Advances or
LIBO Rate Advances that would have been made by such Lender or the Converted
Eurodollar Rate Advances shall instead be applied to repay the Base Rate
Advances made by such Lender in lieu of such Eurodollar Rate Advances or LIBO
Rate Advances, or resulting from the Conversion of such Eurodollar Rate
Advances.
(b) For purposes of this Section 2.11, a notice to the
Borrower by any Lender shall be effective as to each Eurodollar Rate Advance and
LIBO Rate Advance, if lawful, on the last day of the Interest Period currently
applicable to such Eurodollar 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 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 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
25
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 Eurodollar 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 Eurodollar 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.
(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
26
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.
(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
27
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 Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) 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
28
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 SectionE2.15 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Commitment
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)Ethe aggregate amount of the Competitive Bid Advances of any
one Lender then outstanding shall not exceed $50,000,000 and (z)Ethe 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).
(i) The Borrower may request a Competitive Bid Borrowing under this
SectionE2.15 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 ExhibitEB-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 Commitment Termination Date),
29
(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 10:00A.M.
(NewYork 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 9:30A.M. (NewYork 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 10:00A.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
SectionE2.15(a), exceed such Lender's Commitment, if any), the rate or rates of
interest therefor, the interest payment schedule, the maturity date of the
proposed Competitive Bid Advance, such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance and such other terms as the Borrower
may specify in the Notice of Competitive Bid Borrowing; 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 10:00A.M. (NewYork City
time) on the date on
30
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 10:30A.M. (NewYork 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
11:00A.M. (NewYork 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 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
31
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 12:00noon (NewYork 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. 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 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
32
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)Ethe 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.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall, upon the request of the Lender making such Competitive Bid
Advance, be evidenced in part by a Competitive Bid Note of the Borrower payable
to the order of the Lender making such Competitive Bid Advance, which Note shall
be delivered by the Borrower to the Agent promptly following the making of such
Competitive Bid Advance in a principal amount equal to the aggregate Commitments
of the Lenders hereunder.
33
(g) Upon delivery of each Notice of Competitive Bid Borrowing,
the Borrower shall pay a non-refundable fee of $1,500 to the Agent for its own
account.
SECTION 2.16. Additional Interest on Eurodollar Rate Advances.
For so long as any Lender maintains reserves against Eurocurrency Liabilities,
the Borrower shall pay to the Agent for the account of each such Lender
additional interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender, from the date of such Advance until such principal
amount is paid in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting, in the case of Revolving Advances, (a) the
Eurodollar Rate for the Interest Period for such Advance from (b) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Lender and notified to the
Borrower through the Agent.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. The Borrower agrees
that upon notice by any Lender to the Borrower (with a copy of such notice to
the Agent) to the effect that a promissory note or other evidence of
indebtedness is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, the Borrower shall promptly execute and
deliver to such Lender a Revolving Note, payable to the order of such Lender in
a principal amount equal to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
8.07(g) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, whether such Borrowing is composed of
Revolving Advances or Competitive Bid Advances, and, if applicable, the Type of
Advance comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder,
and (iv) the amount of any sum received by the Agent from the Borrower hereunder
and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and
34
payable from the Borrower to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement, absent
manifest error; provided, however, that the failure of the Agent or such Lender
to make an entry, or any finding that an entry is incorrect, in the Register or
such account or accounts shall not limit or otherwise affect the obligations of
the Borrower under this Agreement.
(d) References herein to Notes shall mean and be references to
Revolving Notes and Competitive Bid Notes to the extent issued hereunder.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for (a) the purpose of funding amounts payable pursuant to the Asset
Purchase Agreement dated as of August 25, 1997 among Stamford FHI Acquisition
Corp., Holdings, Fiberite and the Borrower relating to the proposed acquisition
of certain assets (and assumption of certain liabilities) of Holdings and
Fiberite (the "Acquisition"), it being understood that such amounts may be
funded regardless of whether the Acquisition is consummated, and (b) funding
amounts payable in connection with any other acquisitions approved by all of the
Lenders.
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, 1996.
(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) would
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 (other than the Acquisition)
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 (other than
consents and approvals in connection with the Acquisition,
35
including any consents and approvals under the HSR Act or any similar foreign
law or regulation) 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 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. All
applicable waiting periods (other than any waiting periods in connection with
the Acquisition under the HSR Act or any similar foreign law or regulation)
shall have expired without any action having been taken by any competent
authority restraining, preventing or imposing 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 those Lenders that have
requested Notes prior to the Effective Date.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and any Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and any
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 authorized to sign this Agreement and any
Notes and the other documents to be delivered hereunder.
(iv) The environmental assessment update report dated July 29,
1997 prepared by the Borrower as to any material environmental hazards
or liabilities to which the Borrower or any of its Subsidiaries may be
subject.
(v) A favorable opinion of Cravath, Swaine & ▇▇▇▇▇, special
36
counsel for the Borrower, substantially in the form of Exhibit E-1
hereto and as to such other matters as any Lender through the Agent may
reasonably request.
(vi) A favorable opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General
Counsel of the Borrower, substantially in the form of Exhibit E-2
hereto and as to such other matters as any Lender through the Agent may
reasonably request.
(vii) 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
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
(except the representations set forth in the last sentence of subsection (e)
thereof) 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.
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SECTION 3.04. 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, and (ii)
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 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, and
(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.
SECTION 3.05. 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 3.06. 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.
ARTICLE IV
38
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 any 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 (including, without limitation, the Series C
Certificate) 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, 1996, 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 June 30,
1997, and the related Consolidated statement of income and cash flows of the
Borrower and its Subsidiaries for the six 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 June 30, 1997, and said statement of income and cash flows for the
six 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. As of the Effective Date, since December 31, 1996, 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
39
any of its Subsidiaries or, to 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) would 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 would 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 Regulations U and G 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 would not be
reasonably expected to have a Material Adverse Effect, and to the knowledge of
the Borrower, no circumstances exist that would 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 would 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 would 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 would 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
40
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 would not reasonably be
expected to result, neither 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 a
manner which would reasonably be expected to result in a Material Adverse
Effect; and except to the extent failure to do so would not reasonably be
expected to result in a Material Adverse Effect, all Hazardous Materials have
been used, treated, handled, stored and disposed of on such properties in
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 other than such ERISA Events as would not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(l) Schedule B (Actuarial Information) to the most recent 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 is complete and accurate
in all material respects and fairly presents the funding status of such Plan as
of the date set forth therein, and since the date of such Schedule B there has
been no change in such funding status that would reasonably be expected to
result in a Material Adverse Effect.
(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 that would
reasonably be expected to result in a Material Adverse Effect.
(n) Except as would not reasonably be expected to result in a Material
Adverse Effect, 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
41
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, 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 (i) 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 or (ii) where the failure so to comply, either
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Effect.
(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 income and all other material 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 except such claims
that, either individually or in the
42
aggregate, would not reasonably be expected to result in a Material Adverse
Effect; 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 commercially reasonable efforts to cause
all lessees and other Persons occupying its properties to comply, with all
applicable Environmental Laws and Environmental Permits applicable to its
operations and properties except to the extent that the failure so to comply
would not reasonably be expected to result in a Material Adverse Effect; 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 would not reasonably be expected to result in 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
Materials from any of its properties, in all material respects in accordance
with the requirements of all applicable Environmental Laws except to the extent
that the failure so to comply would not reasonably be expected to result in a
Material Adverse Effect; 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 (which may include self-insurance to the
extent consistent with prudent business practices and otherwise customary in
their respective industries and to the extent such self-insurance would not
reasonably be expected to have a Material Adverse Effect) 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
43
permitted under Section 5.02(c) and provided further that neither the Borrower
nor any of its Subsidiaries shall be required to preserve any right or
franchise if, in the good faith business judgment of the Board of Directors or
of a Responsible Officer of the Borrower or such Subsidiary, 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
reasonably expected to result in a Material Adverse Effect.
(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 90 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.
(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, in the good faith business judgment of the Board of
Directors or of a Responsible Officer of the Borrower or such Subsidiary,
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
44
thereof is not reasonably likely to result in a Material Adverse Effect.
(j) 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
(considered as a whole, in conjunction with all other relationships and
arrangements with such Affiliates and consistent with prudent business
practices) 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(j), 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 would 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.
(k) 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 SectionsE5.02(a) and (b);
(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
45
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 opinion unqualified as to going concern or other matters material in
the judgment of the Required Lenders by KPMG Peat Marwick or another
"Big Six" accounting firm or other independent public
accountants of recognized national standing reasonably
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) and(b);
(iii) promptly 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;
(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 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 which would reasonably be
expected to (A) form the basis of an Environmental Action against the
Borrower or any of its Subsidiaries or such property that would be
reasonably expected to 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
would be reasonably expected to have a Material Adverse Effect;
46
(vi) 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;
(vii) promptly and in any event within three 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;
(viii) 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;
(ix) 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 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);
(x) promptly and in any event within 10 Business Days after the
effectiveness thereof, copies of each amendment to and waiver of any
provision of the SeriesEC Certificate; 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:
47
(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) (x) purchase money Liens upon or in any property acquired
or held by the Borrower or any Subsidiary 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 (y) 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
subclause (x) of this clause (ii) shall not exceed at any time
outstanding $200,000,000 (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),
(iv) other Liens securing Debt and other monetary obligations
outstanding in an aggregate principal amount not to exceed $25,000,000
(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 in the ordinary course of business (including Liens
in connection with securitization programs),
48
(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,
(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, and
(xi) Liens consisting of the lease by the Borrower of all or a
portion of its Stamford, Connecticut property to a third party.
(b) Debt. Permit any of its Subsidiaries to create or suffer to exist
any Debt other than:
(i) Debt owed to the Borrower or to a wholly owned Subsidiary of
the Borrower,
(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
49
Liens permitted by Section 5.02(a)(ii), (iv), (vii) or (ix) subject to
any limitations set forth in such Section,
(iv) unsecured Debt of the Borrower's Subsidiaries aggregating,
on a Consolidated basis, at any one time outstanding, not more than
$150,000,000 (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 ("Acquired 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), and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, such Acquired 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 Acquired 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,
(vii) indorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business,
(viii) Debt incurred in connection with the sale or other
disposition of accounts receivable in the ordinary course of business
(including Debt in connection with securitization programs), and
(ix) 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 one time outstanding, not more than
$60,000,000 (or the equivalent thereof in any Foreign Currency,
determined as of the date such Debt is issued or incurred).
(c) 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 the assets of the Borrower
or the Borrower and its Subsidiaries taken as a whole
50
(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 and any Subsidiary 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.
(d) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the fundamental nature of the
business of the Borrower and its Subsidiaries, taken as a whole, as carried on
at the date hereof.
(e) 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.
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 0.60:1.
(b) Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage Ratio
of not less than 2.50:1 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:
(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
51
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), (j) or (k)(iii), (v),
(vi), (vii) or (ix), 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 30 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 shall fail to pay
any principal of or premium or interest on or any other amount payable in
respect of any Debt which is outstanding in a principal amount of at least
$10,000,000 or any Hedge Agreement the Agreement Value of which is 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 (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 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 seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief 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
52
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 Material Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this subsection (e);
or
(f) Any judgment or order for the payment of money in excess of
$10,000,000 (or the equivalent thereof in any Foreign Currency) shall be
rendered against the Borrower or any of its Material 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 30 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 30 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 or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of RuleE13d-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)Eduring 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), or (iii)Eany Person or two 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
53
controlling influence over the management or policies of the Borrower;
or
(i) Any ERISA Event shall have occurred in an amount exceeding
$10,000,000; 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 $10,000,000 or requires payments exceeding $2,000,000
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 TitleEIV of
ERISA, the Borrower is reasonably 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 $2,000,000;
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
Advances and the Notes, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon the Advances, the
Notes, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, however,
that in the event of an actual or deemed entry of an order for relief with
respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of
each Lender to make Advances shall automatically be terminated and (B) the
Advances and 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
54
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 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 any 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
55
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 Advances then owing to them (or if no Revolving Advances 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 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
56
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)Ewaive any of the conditions
specified in Section 3.01 or 3.02 (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 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
57
at Five Garret ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, 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 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)
58
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 of, any
Eurodollar 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 pursuant to Section
2.07(d), 2.08, 2.09 or 2.11, 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, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
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 Advance and 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 Advance owing to such Lender and
any Note held by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
setoff and application, provided that the
59
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)
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 any 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 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
60
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 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
61
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. Promptly after its receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, if requested by the assigning Lender or such Eligible Assignee, (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 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
62
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. Promptly 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, if
requested by such designee, 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 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 any Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
63
(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 Advances or 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 Advance or 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 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.
64
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 permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
[The rest of this page intentionally left blank]
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SECTION 8.12. 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/ ▇. ▇. ▇▇▇▇▇▇▇
-------------------
Name:▇. ▇. ▇▇▇▇▇▇▇
Title: Treasurer
CITIBANK, N.A.,
as Agent
By/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
66
$200,000,000 Total of the Commitments
============
Commitment Banks
---------- -----
$200,000,000 CITIBANK, N.A.
By/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-fact
67