EXHIBIT 4.9
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▇▇▇▇▇▇ RUBBERMAID INC.
_______________________________________
364-DAY CREDIT AGREEMENT
Dated as of October 23, 2000
_______________________________________
$700,000,000
_______________________________________
THE CHASE MANHATTAN BANK,
as Administrative Agent
_______________________________________
CHASE SECURITIES INC.,
as Advisor, Lead Arranger and Book Manager
ROYAL BANK OF CANADA,
as Syndication Agent
BANK ONE, NA,
as Documentation Agent
TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS . . . . . . . . . 1
1.01 CERTAIN DEFINED TERMS . . . . . . . . . . . . . . . . 1
1.02 ACCOUNTING TERMS AND DETERMINATIONS . . . . . . . . . 16
1.03 TYPES OF LOANS . . . . . . . . . . . . . . . . . . . . 17
1.04 TERMS GENERALLY . . . . . . . . . . . . . . . . . . . 17
SECTION 2. COMMITMENTS . . . . . . . . . . . . . . . . . . . . . 18
2.01 COMMITTED LOANS . . . . . . . . . . . . . . . . . . . 18
2.02 BORROWINGS OF COMMITTED LOANS . . . . . . . . . . . . 18
2.03 COMPETITIVE LOANS . . . . . . . . . . . . . . . . . . 19
2.04 BORROWINGS BY DESIGNATED BORROWERS . . . . . . . . . . 24
2.05 CHANGES OF COMMITMENTS . . . . . . . . . . . . . . . . 25
2.06 FEES . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.07 LENDING OFFICES . . . . . . . . . . . . . . . . . . . 26
2.08 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT . . . . . . 26
2.09 EVIDENCE OF DEBT . . . . . . . . . . . . . . . . . . . 26
2.10 PREPAYMENTS . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST . . . . . . . . . . 27
3.01 REPAYMENT OF LOANS . . . . . . . . . . . . . . . . . . 27
3.02 INTEREST . . . . . . . . . . . . . . . . . . . . . . . 27
3.03 REDENOMINATION . . . . . . . . . . . . . . . . . . . . 28
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC . . . 29
4.01 PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . 29
4.02 PRO RATA TREATMENT . . . . . . . . . . . . . . . . . . 30
4.03 COMPUTATIONS . . . . . . . . . . . . . . . . . . . . . 30
4.04 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT . . . 30
4.05 SET-OFF; SHARING OF PAYMENTS . . . . . . . . . . . . . 31
SECTION 5. YIELD PROTECTION AND ILLEGALITY . . . . . . . . . . . 32
5.01 ADDITIONAL COSTS . . . . . . . . . . . . . . . . . . . 32
5.02 LIMITATION ON TYPES OF LOANS . . . . . . . . . . . . . 35
5.03 ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . 35
5.04 BASE RATE LOANS PURSUANT TO SECTIONS 5 . . . . . . . . 35
5.05 COMPENSATION . . . . . . . . . . . . . . . . . . . . . 36
5.06 TAXES . . . . . . . . . . . . . . . . . . . . . . . . 37
5.07 REPLACEMENT OF LENDERS . . . . . . . . . . . . . . . . 38
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . 39
6.01 EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . 39
6.02 INITIAL AND SUBSEQUENT CREDIT EXTENSIONS . . . . . . . 40
SECTION 7. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 40
7.01 CORPORATE EXISTENCE . . . . . . . . . . . . . . . . . 40
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7.02 FINANCIAL CONDITION . . . . . . . . . . . . . . . . . 40
7.03 LITIGATION . . . . . . . . . . . . . . . . . . . . . . 41
7.04 NO BREACH . . . . . . . . . . . . . . . . . . . . . . 41
7.05 CORPORATE ACTION . . . . . . . . . . . . . . . . . . . 42
7.06 APPROVALS . . . . . . . . . . . . . . . . . . . . . . 42
7.07 USE OF CREDIT . . . . . . . . . . . . . . . . . . . . 42
7.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . 42
7.09 CREDIT AGREEMENTS . . . . . . . . . . . . . . . . . . 42
7.10 HAZARDOUS MATERIALS . . . . . . . . . . . . . . . . . 43
7.11 TAXES . . . . . . . . . . . . . . . . . . . . . . . . 43
7.12 TRUE AND COMPLETE DISCLOSURE . . . . . . . . . . . . . 43
7.13 SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . 44
7.14 COMPLIANCE WITH LAW . . . . . . . . . . . . . . . . . 44
7.15 DESIGNATED BORROWER APPROVALS . . . . . . . . . . . . 44
SECTION 8. COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . 44
8.01 FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . 45
8.02 LITIGATION . . . . . . . . . . . . . . . . . . . . . . 47
8.03 CORPORATE EXISTENCE, ETC . . . . . . . . . . . . . . . 47
8.04 INSURANCE . . . . . . . . . . . . . . . . . . . . . . 48
8.05 USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . 48
8.06 INDEBTEDNESS . . . . . . . . . . . . . . . . . . . . . 48
8.07 FUNDAMENTAL CHANGES . . . . . . . . . . . . . . . . . 49
8.08 LIENS . . . . . . . . . . . . . . . . . . . . . . . . 50
8.09 LINES OF BUSINESSES . . . . . . . . . . . . . . . . . 51
8.10 TOTAL INDEBTEDNESS TO TOTAL CAPITAL . . . . . . . . . 51
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . 51
SECTION 10. THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . 55
10.01 APPOINTMENT, POWERS AND IMMUNITIES . . . . . . . . . 55
10.02 RELIANCE BY ADMINISTRATIVE AGENT . . . . . . . . . . 55
10.03 DEFAULTS . . . . . . . . . . . . . . . . . . . . . . 56
10.04 RIGHTS AS A LENDER . . . . . . . . . . . . . . . . . 56
10.05 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . 56
10.06 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER
LENDERS . . . . . . . . . . . . . . . . . . . . . . . 57
10.07 FAILURE TO ACT . . . . . . . . . . . . . . . . . . . 57
10.08 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT . . . 57
10.09 LEAD ARRANGER AND OTHER AGENTS . . . . . . . . . . . 58
SECTION 11. GUARANTEE . . . . . . . . . . . . . . . . . . . . . . 58
11.01 GUARANTEE . . . . . . . . . . . . . . . . . . . . . . 58
11.02 OBLIGATIONS UNCONDITIONAL . . . . . . . . . . . . . . 58
11.03 REINSTATEMENT . . . . . . . . . . . . . . . . . . . . 59
11.04 SUBROGATION . . . . . . . . . . . . . . . . . . . . . 59
11.05 REMEDIES . . . . . . . . . . . . . . . . . . . . . . 59
11.06 CONTINUING GUARANTEE . . . . . . . . . . . . . . . . 60
SECTION 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 60
12.01 WAIVER . . . . . . . . . . . . . . . . . . . . . . . 60
12.02 NOTICES . . . . . . . . . . . . . . . . . . . . . . . 60
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12.03 EXPENSES, ETC . . . . . . . . . . . . . . . . . . . . 60
12.04 AMENDMENTS, ETC . . . . . . . . . . . . . . . . . . . 61
12.05 ASSIGNMENTS AND PARTICIPATIONS . . . . . . . . . . . 62
12.06 SURVIVAL . . . . . . . . . . . . . . . . . . . . . . 63
12.07 CAPTIONS . . . . . . . . . . . . . . . . . . . . . . 64
12.08 COUNTERPARTS; EFFECTIVENESS . . . . . . . . . . . . . 64
12.09 GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS;
WAIVER OF JURY TRIAL; ETC . . . . . . . . . . . . . . 64
12.10 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . 65
12.11 JUDGMENT CURRENCY . . . . . . . . . . . . . . . . . . 65
12.12 EUROPEAN MONETARY UNION . . . . . . . . . . . . . . . 66
Annex I - Commitments
Schedule I - List of Indebtedness
Schedule II - List of Certain Liens
EXHIBIT A-1 - Form of Opinion of Special Illinois Counsel
EXHIBIT A-2 - Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Associate
General Counsel to the Company and its
Subsidiaries
EXHIBIT B - Form of Opinion of Special New York Counsel to the
Administrative Agent
EXHIBIT C - Form of Competitive Bid Request
EXHIBIT D - Form of Competitive Bid
EXHIBIT E-1 - Form of Designation Letter
EXHIBIT E-2 - Form of Termination Letter
EXHIBIT F - Form of Assignment and Acceptance
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364-DAY CREDIT AGREEMENT dated as of October 23, 2000,
between ▇▇▇▇▇▇ RUBBERMAID INC., a corporation duly organized and
validly existing under the laws of the State of Delaware (together
with its successors, the "Company"); each of the lenders which is a
signatory hereto (together with its successors and permitted assigns,
individually, a "Lender" and, collectively, the "Lenders"); and THE
CHASE MANHATTAN BANK, as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the
"Administrative Agent").
The Company has requested that the Lenders make loans to it
and the other Borrowers (as hereinafter defined) in an aggregate
principal amount not exceeding $700,000,000 at any one time
outstanding. The Lenders are prepared to make such loans upon the
terms and conditions hereof, and, accordingly, the parties agree as
follows:
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following
terms shall have the following meanings (all terms defined in this
Section 1 or in other provisions of this Agreement in the singular to
have the same meanings when used in the plural and vice versa):
"Adjusted LIBO Rate" shall mean, for any LIBO Rate Loan, a
rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined by the Administrative Agent to be equal to the LIBO
Rate for the Interest Period for such Loan divided by 1 minus the
Reserve Requirement for such Loan for such Interest Period.
"Administrative Agent's Account" shall mean, in respect of
any Currency, such account as the Administrative Agent shall designate
in a notice to the Company and the Lenders.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form supplied by the Administrative Agent.
"Affiliate" shall mean, with respect to any Person, any
other Person that directly or indirectly controls or is controlled by
or is under common control with such Person.
"Alternative Currency" shall mean at any time (a) Euros and
(b) any currency (other than Dollars and Euros) so long as at such
time, (i) such currency is dealt with in the London interbank deposit
market, (ii) such currency is freely transferable and convertible into
Dollars in the London foreign exchange market and (iii) no central
bank or other governmental authorization in the country of issue of
such currency is required to permit use of such currency by any Lender
for making any Loan hereunder and/or to permit the relevant Borrower
to borrow and repay the principal thereof and to pay the interest
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thereon, unless such authorization has been obtained and is in full
force and effect.
"Applicable Facility Fee Rate" and "Applicable Margin" shall
mean, during any period when the Rating is at one of the Rating Groups
specified below, the percentage set forth below opposite the reference
to such fee or to the relevant Type of Committed Loan:
Rating Rating Rating Rating Rating
Group Group Group Group Group
Fee or Loan I II III IV V
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Applicable Facility 0.050% 0.060% 0.080% 0.090% 0.160%
Fee Rate
Applicable Margin for 0.125% 0.165% 0.170% 0.185% 0.340%
Committed LIBOR Loans
Applicable Margin for 0.0% 0.0% 0.0% 0.0% 0.0%
Base Rate Loans
Any change in the Applicable Facility Fee Rate or in the Applicable
Margin by reason of a change in the ▇▇▇▇▇'▇ Rating or the Standard &
Poor's Rating shall become effective on the date of announcement or
publication by the respective Rating Agency of a change in such Rating
or, in the absence of such announcement or publication, on the
effective date of such changed rating.
"Applicable Lending Office" shall mean for each Lender and
for each Type and Currency of Loan the lending office of such Lender
(or of an Affiliate of such Lender) designated for such Type and
Currency of Loan in the Administrative Questionnaire submitted by such
Lender or such other office of such Lender (or of an Affiliate of such
Lender) as such Lender may from time to time specify to the
Administrative Agent and the Company.
"Approved Designated Borrower" shall mean (i) any Domestic
Subsidiary that is a Wholly-Owned Subsidiary of the Company as to
which a Designation Letter has been delivered to the Administrative
Agent and as to which a Termination Letter shall not have been
delivered to the Administrative Agent, which Subsidiary has been
approved as a borrower hereunder by all of the Lenders, all in
accordance with Section 2.04, and (ii) for the purposes of Section
5.06, also the Company.
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"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent
of any party whose consent is required by Section 12.05), and accepted
by the Administrative Agent, in the form of Exhibit F or any other
form approved by the Administrative Agent.
"Bankruptcy Code" means the United States Bankruptcy Code of
1978, as amended from time to time.
"Base Rate" shall mean, with respect to any Base Rate Loan,
for any day, the higher of (a) the Federal Funds Rate for such day
plus 1/2 of 1% and (b) the Prime Rate for such day.
"Base Rate Loans" shall mean Loans which bear interest based
upon the Base Rate.
"Basel Accord" shall mean the proposals for risk-based
capital framework described by the Basel Committee on Banking
Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital
Standards" dated July 1988, as amended, supplemented and otherwise
modified and in effect from time to time, or any replacement thereof.
"Borrowers" shall mean the Company, each Approved Designated
Borrower and each Designated Borrower.
"Business Day" shall mean any day (a) that is not a
Saturday, Sunday or other day on which commercial banks are authorized
or required to close in New York City and (b) where such term is used
in the definition of "Quarterly Dates" in this Section 1.01 or if such
day relates to the giving of notices or quotes in connection with a
LIBOR Auction or to a borrowing of, a payment or prepayment of
principal of or interest on, or an Interest Period for, a LIBO Rate
Loan or a notice by the Company with respect to any such borrowing,
payment, prepayment or Interest Period, also on which dealings in
deposits are carried out in the London interbank market and (c) if
such day relates to the date on which the LIBO Rate is determined
under this Agreement for the Interest Period of any Loan denominated
in Euros (or in any National Currency), that is a TARGET Day and (d)
if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, or an Interest Period for, any Loan
denominated in an Alternative Currency, or a notice by the Company
with respect to any such borrowing, payment, prepayment or Interest
Period, also on which foreign exchange trading is carried out in the
London interbank market and on which banks are open in the place of
payment in the country in whose Currency such Loan is denominated.
"Capital Lease Obligations" shall mean, as to any Person,
the obligations of such Person to pay rent or other amounts under a
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lease of (or other agreement conveying the right to use) real and/or
personal property which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such Person
under GAAP (including Statement of Financial Accounting Standards No.
13 of the Financial Accounting Standards Board) and, for purposes of
this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP
(including such Statement No. 13).
"Chase" shall mean The Chase Manhattan Bank.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" shall mean, as to each Lender, the obligation
of such Lender to make Committed Loans in an aggregate amount at any
one time outstanding equal to the amount set opposite such Lender's
name on Annex I hereto under the caption "Commitment" (as the same may
be reduced pursuant to Section 2.05). The original aggregate
principal amount of the Commitments is $700,000,000.
"Commitment Termination Date" shall mean October 22, 2001;
provided that, if such date is not a Business Day, the Commitment
Termination Date shall be the next preceding Business Day.
"Committed Loans" shall mean the loans provided for by
Section 2.01.
"Committed LIBOR Loans" shall mean Committed Loans the
interest rates on which are determined on the basis of Adjusted LIBO
Rates.
"Competitive Affiliate Loan" means a Competitive Loan to be
made by an Affiliate of a Lender pursuant to Section 2.03(h).
"Competitive Bid" shall have the meaning assigned to that
term in Section 2.03(c)(i).
"Competitive Bid Rate" shall have the meaning assigned to
that term in Section 2.03(c)(ii)(D).
"Competitive Bid Request" shall have the meaning assigned to
that term in Section 2.03(b).
"Competitive Borrowing" shall have the meaning assigned to
that term in Section 2.03(b).
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"Competitive LIBOR Loans" shall mean Competitive Loans the
interest rates on which are determined on the basis of Adjusted LIBO
Rates pursuant to a LIBOR Auction.
"Competitive Loan Limit" shall have the meaning assigned to
that term in Section 2.03(c)(ii).
"Competitive Loans" shall mean the loans provided for by
Section 2.03.
"Credit Documents" shall mean this Agreement, the Notes,
each Designation Letter and each Termination Letter.
"Credit Extension" shall mean the making of any Loan
hereunder.
"Currency" shall mean Dollars or any Alternative Currency.
"Default" shall mean an Event of Default or an event which
with notice or lapse of time or both would become an Event of Default.
"Designated Borrower" shall mean any Wholly-Owned Subsidiary
of the Company as to which a Designation Letter has been delivered to
the Administrative Agent and as to which a Termination Letter shall
not have been delivered to the Administrative Agent in accordance with
Section 2.04; and the term "Designated Borrower" shall include any
Approved Designated Borrower.
"Designation Letter" shall have the meaning assigned to such
term in Section 2.04(a).
"Determination Date" shall mean, for any Disposition, the
last day of the fiscal quarter ending on or immediately preceding the
date of such Disposition.
"Disposition" shall have the meaning assigned to that term
in Section 8.07(vi).
"Disposition Period" shall mean, for any Disposition, a
period of twelve months ending on the date of such Disposition.
"Dollar Equivalent" shall mean, with respect to any Loan
denominated in an Alternative Currency, the amount of Dollars that
would be required to purchase the amount of the Alternative Currency
of such Loan on the date such Loan is requested (or, (a) in the case
of Competitive Loans, the date of the related Competitive Bid Request
and (b) in the case of any redenomination under Section 3.03, on the
date of such redenomination), based upon the arithmetic mean (rounded
upwards, if necessary, to the nearest 1/100 of 1%), as determined by
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the Administrative Agent, of the spot selling rate at which the
Reference Banks offer to sell such Alternative Currency for Dollars in
the London foreign exchange market at approximately 11:00 a.m. London
time for delivery two Business Days later.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary of the
Company that is incorporated under the laws of the United States of
America or any State thereof or the District of Columbia.
"Effective Date" shall mean the date on which the conditions
specified in Section 6.01 are satisfied (or waived in accordance with
Section 12.01).
"EMU" shall mean economic and monetary union in accordance
with the Treaty of Rome 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998,
as amended from time to time.
"EMU Legislation" shall mean legislative measures of the
European Council for the introduction of, changeover to or operation
of a single or unified European currency (whether known as the "euro"
or otherwise).
"Environmental Affiliate" shall mean, as to any Person, any
other Person whose liability (contingent or otherwise) for any
Environmental Claim such Person may have retained, assumed or
otherwise become liable (contingently or otherwise), whether by
contract, operation of law or otherwise; PROVIDED that each Subsidiary
of such Person, and each former Subsidiary or division of such Person
transferred to another Person, shall in any event be an "Environmental
Affiliate" of such Person.
"Environmental Claim" shall mean, with respect to any
Person, any notice, claim, demand or other communication (whether
written or oral) by any other Person alleging or asserting liability
of such Person for investigatory costs, cleanup costs, governmental
response costs, damages to natural resources or other Property,
personal injuries, fines or penalties arising out of, based on or
resulting from (a) the presence, or release into the environment, of
any hazardous material at any location, whether or not owned by such
Person, or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Laws" shall mean any and all Federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants, franchises,
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licenses, agreements or other governmental restrictions relating to
the environment or to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial, toxic
or hazardous substances or wastes into the environment, including,
without limitation, ambient air, surface water, ground water or land,
or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial, toxic or hazardous
substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether
or not incorporated) that, together with the Company, is treated as a
single employer under Section 414(b) or (c) of the Code, or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"Euro" shall mean the single currency of Participating
Member States introduced in accordance with the provisions of the EMU
Legislation.
"Event of Default" shall have the meaning assigned to that
term in Section 9.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers on such day as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day,
PROVIDED that (i) if the day for which such rate is to be determined
is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (ii) if such
rate is not so published for any day, the Federal Funds Rate for such
day shall be the average rate charged to Chase on such day on such
transactions as determined by the Administrative Agent.
"Final Risk-Based Capital Guidelines" shall mean (i) the
Final Risk-Based Capital Guidelines of the Board of Governors of the
Federal Reserve System (12 C.F.R. Part 208, Appendix A; ▇▇ ▇.▇.▇. ▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇ ▇) and (ii) the Final Risk-Based Capital Guidelines of
the Office of the Comptroller of the Currency, and any successor or
supplemental regulations (12 C.F.R. Part 3, Appendix A), and any
successor regulations, in each case, as amended, supplemented and
otherwise modified and in effect from time to time.
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"Foreign Currency Equivalent" shall mean, with respect to
any amount in Dollars, the amount of any Alternative Currency that
could be purchased with such amount of Dollars using the reciprocal of
foreign exchange rate(s) specified in the definition of the term
"Dollar Equivalent", as determined by the Administrative Agent.
"Foreign Subsidiary" shall mean any Subsidiary of the
Company that is not a Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles
applied on a basis consistent with those which, in accordance with the
last sentence of Section 1.02(a), are to be used in making the
calculations for purposes of determining compliance with the
provisions of this Agreement.
"Guarantee" of any Person shall mean any guarantee,
endorsement, contingent agreement to purchase or to furnish funds for
the payment or maintenance of, or any other contingent liability on or
with respect to, the Indebtedness, other obligations, net worth,
working capital or earnings of any other Person (including, without
limitation, the liability of such Person in respect of the
Indebtedness of any partnership of which such Person is a general
partner), or the guarantee by such Person of the payment of dividends
or other distributions upon the stock of any other Person, or the
agreement by such Person to purchase, sell or lease (as lessee or
lessor) property, products, materials, supplies or services primarily
for the purpose of enabling any other Person to make payment of its
obligations or to assure a creditor against loss, and the verb
"Guarantee" shall have a correlative meaning, PROVIDED that the term
"Guarantee" shall not include endorsements for collection or deposits
in the ordinary course of business.
"Indebtedness" shall mean, as to any Person at any date
(without duplication): (i) indebtedness created, issued, incurred or
assumed by such Person for borrowed money or evidenced by bonds,
debentures, notes or similar instruments; (ii) all obligations of such
Person to pay the deferred purchase price of property or services,
excluding, however, trade accounts payable (other than for borrowed
money) arising in, and accrued expenses incurred in, the ordinary
course of business of such Person so long as such trade accounts
payable are paid within 120 days of the date the respective goods are
delivered or the services are rendered; (iii) all Indebtedness of
others secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person; (iv) all Indebtedness of
others Guaranteed by such Person; (v) all Capital Lease Obligations;
(vi) the Investment Amount (if any); (vii) reimbursement obligations
of such Person (whether contingent or otherwise) in respect of bankers
acceptances, surety or other bonds and similar instruments (other than
commercial, standby or performance letters of credit); and (viii)
Credit Agreement
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unpaid reimbursement obligations of such Person (other than contingent
obligations) in respect of commercial, standby or performance letters
of credit.
"Interest Period" shall mean:
(a) with respect to any Committed LIBOR Loan, each period
commencing on the date such Committed LIBOR Loan is made and ending on
the numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as the Company (on its own behalf and on
behalf of any other Borrower) may select as provided in Section 2.02,
except that each Interest Period that commences on the last Business
Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate
subsequent calendar month;
(b) with respect to any Base Rate Loan, the period
commencing on the date such Base Rate Loan is made and ending on the
first Quarterly Date thereafter;
(c) with respect to any Set Rate Loan, the period
commencing on the date such Set Rate Loan is made and ending on any
Business Day up to 180 days thereafter, as the Company may select as
provided in Section 2.03(b); and
(d) with respect to any Competitive LIBOR Loan, the period
commencing on the date such Competitive LIBOR Loan is made and ending
on the numerically corresponding day in the first, second, third or
sixth calendar month thereafter, as the Company may select as provided
in Section 2.03(b), except that each Interest Period which commences
on the last Business Day of a calendar month (or any day for which
there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period would
otherwise commence before and end after the Commitment Termination
Date, such Interest Period shall not be available hereunder; (ii) each
Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, in the
case of an Interest Period for any LIBO Rate Loans, if such next
succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day); and (iii) notwithstanding clause
(i) above, no Interest Period for any LIBO Rate Loans shall have a
duration of less than one month and, if the Interest Period for any
such Loans would otherwise be a shorter period, such Loans shall not
be available hereunder.
Credit Agreement
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"Investment Amount" shall mean the amount described as an
"Investment Amount" in a Receivables Sale Agreement.
"Jurisdiction" shall mean, with respect to any Borrower, the
country or countries (including any political subdivision or taxing
authority thereof or therein) under whose laws such Borrower is
organized or where such Borrower is domiciled, resident or licensed or
otherwise qualified to do business or where any significant part of
the Property of such Borrower is located.
"Lender Affiliate" shall have the meaning assigned to that
term in Section 2.03(h).
"LIBO Rate" shall mean, for the Interest Period for any LIBO
Rate Loan, the rate for deposits in the relevant Currency with a
maturity comparable to such Interest Period commencing on the first
day of such Interest Period appearing on Page 3750 of the Telerate
Service (or on any successor or substitute page of such Service, or
any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page for
such Service, as determined by the Administrative Agent, with written
notice to the Borrower, from time to time for purposes of providing
quotations of interest rates applicable to such Currency deposits in
the London interbank market) at approximately 11:00 a.m., London time,
on the Quotation Date for such Currency; PROVIDED that the LIBO Rate
for any LIBO Rate Loan denominated in Pounds Sterling for any Interest
Period shall be increased by any Mandatory Costs (but only to the
extent applicable to any Lender).
In the event that such rate is not available for any reason,
the LIBO Rate shall mean, with respect to such LIBO Rate Loan for such
Interest Period, the rate at which deposits of $1,000,000 (or, in the
case where a LIBO Rate Loan is a Currency other than Dollars, the
Foreign Currency Equivalent thereof) and for a maturity comparable to
such Interest Period are offered by the Reference Banks to leading
banks in the London interbank market as of the 11:00 a.m., London
time, on the Quotation Date for such Currency; PROVIDED that (i) if
any Reference Bank is not participating in any borrowing of LIBO Rate
Loans, the LIBO Rate for such Loans shall be determined by reference
to the amount of the Loan which such Reference Bank would have made
had it been participating in such Loans, (ii) in determining the LIBO
Rate with respect to any Competitive LIBOR Loan, each Reference Bank
shall be deemed to have made a Competitive LIBOR Loan in an amount
equal to $1,000,000, (iii) each Reference Bank agrees to use its best
efforts to furnish timely information to the Administrative Agent for
purposes of determining the LIBO Rate and (iv) if any Reference Bank
does not furnish such timely information for determination of the LIBO
Rate, the Administrative Agent shall determine such interest rate on
Credit Agreement
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the basis of timely information furnished by the remaining Reference
Banks.
"LIBO Rate Loans" shall mean Committed LIBOR Loans and
Competitive LIBOR Loans.
"LIBOR Auction" shall mean a solicitation of Competitive
Bids setting forth Margins based on the Adjusted LIBO Rate pursuant to
Section 2.03.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the
Company or any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Loans" shall mean Committed Loans and Competitive Loans.
"Majority Lenders" shall mean Lenders having at least 51% of
(i) the aggregate amount of the Commitments and (ii) if the
Commitments shall have been terminated, the aggregate outstanding
principal amount of all Loans.
"Mandatory Cost" shall mean, with respect to any Lender, the
cost, if any, imputed to such Lender of compliance with the cash ratio
and special deposit requirements of the Bank of England and/or the
banking supervision or other costs imposed by the Financial Services
Authority during the relevant period, as determined by the Bank of
England and/or Financial Services Authority during such relevant
period.
"Margin" shall have the meaning assigned to that term in
Section 2.03(c)(ii)(C).
"Material Adverse Effect" shall mean a material adverse
effect on (i) the consolidated financial condition, operations,
business or prospects of the Company and its Subsidiaries (taken as a
whole), (ii) the ability of the Company or any Approved Designated
Borrower that is a Significant Subsidiary to perform its obligations
under any of the Credit Documents to which it is a party or (iii) the
validity or enforceability of any of the Credit Documents.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor thereto.
Credit Agreement
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"▇▇▇▇▇'▇ Rating" shall mean, as of any date, the rating most
recently published by Moody's relating to the unsecured, long-term,
senior debt securities of the Company.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"National Currency" shall mean the currency, other than the
Euro, of a Participating Member State.
"Net Worth" shall mean, at any time, the consolidated
stockholders' equity of the Company and its Subsidiaries determined on
a consolidated basis without duplication in accordance with GAAP.
"Non-Strategic Property" shall mean Property acquired as
part of the acquisition of a business made after December 31, 1999
that is designated by resolution of the Board of Directors of the
Company adopted no later than six months after such acquisition as
non-strategic Property.
"Notes" shall mean the promissory notes provided for by
Section 2.09(d).
"Obligor" shall mean the Company, in its capacity as a
Borrower hereunder and in its capacity as a guarantor of Loans made to
any other Borrower under Section 11, and each other Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all its functions under ERISA.
"Participating Member State" shall mean each state so
described in any EMU Legislation.
"Person" shall mean an individual, a corporation, a company,
a limited liability company, a voluntary association, a partnership, a
trust, an unincorporated organization or a government or any agency,
instrumentality or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) which is or was established, sponsored,
maintained or contributed to, by the Company or any ERISA Affiliate
and is or was subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA.
"Post-Default Rate" shall mean, in respect of any principal
of any Loan or any other amount payable by any Borrower under this
Agreement or any Note which is not paid when due (whether at stated
maturity, by acceleration or otherwise), a rate per annum during the
period commencing on the due date until such amount is paid in full
Credit Agreement
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equal to the sum of 2% PLUS the Base Rate as in effect from time to
time PLUS the Applicable Margin for Base Rate Loans (PROVIDED that, if
such amount in default is principal of a LIBO Rate Loan or a Set Rate
Loan and the due date is a day other than the last day of the Interest
Period therefor, the "Post-Default Rate" for such principal shall be,
for the period commencing on the due date and ending on the last day
of the Interest Period therefor, 2% above the interest rate for such
Loan as provided in Section 3.02 and, thereafter, the rate provided
for above in this definition).
"Pounds Sterling" shall mean lawful money of England.
"Prime Rate" shall mean the rate of interest from time to
time announced by Chase at the Principal Office as its prime
commercial lending rate.
"Principal Office" shall mean the principal office of Chase,
located on the date hereof at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
"Property" shall mean any right or interest in or to
property of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible (including, without limitation, shares
of capital stock).
"Quarterly Dates" shall mean the last Business Day of each
March, June, September and December, the first of which shall be the
first such day after the Effective Date.
"Quotation Date" shall mean, for any Interest Period, (a)
for any Currency other than Pounds Sterling, the date two Business
Days prior to the commencement of such Interest Period and (b) for
Pounds Sterling, the first day of such Interest Period, PROVIDED that
if market practice differs in the relevant interbank market for any
Currency, the "Quotation Date" for such Currency shall be determined
by the Administrative Agent in accordance with market practice in the
relevant interbank market (and if quotations would normally be given
by leading banks in the relevant interbank market on more than one
day, the "Quotation Date" shall be the last of such days).
"Rating" shall mean the ▇▇▇▇▇'▇ Rating or the Standard &
Poor's Rating.
"Rating Agency" shall mean Moody's or Standard & Poor's.
"Rating Group I" shall mean the ▇▇▇▇▇'▇ Rating is at or
above Aa2 or the Standard & Poor's Rating is at or above AA; "Rating
Group II" shall mean (a) the ▇▇▇▇▇'▇ Rating is at or above A3 or the
Standard & Poor's Rating is at or above A- and (b) Rating Group I is
Credit Agreement
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not in effect; "Rating Group III" shall mean (a) the ▇▇▇▇▇'▇ Rating is
at or above Baa1 or the Standard & Poor's Rating is at or above BBB+
and (b) neither Rating Group I nor Rating Group II is in effect;
"Rating Group IV" shall mean (a) the ▇▇▇▇▇'▇ Rating is at or above
Baa2 or the Standard & Poor's Rating is at or above BBB and (b)
neither Rating Group I, Rating Group II nor Rating Group III is in
effect; "Rating Group V" shall mean none of Rating Group I, Rating
Group II, Rating Group III and Rating Group IV is in effect; PROVIDED
that, if the ▇▇▇▇▇'▇ Rating and the Standard & Poor's Rating fall into
different Rating levels, then the applicable Rating Group shall be
based upon the higher of such Ratings.
"Receivables Sale Agreement" shall mean an agreement
providing for the periodic sales of accounts receivable.
"Reference Banks" shall mean Chase and Royal Bank of Canada.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System (or any successor), as the
same may be amended or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Lender,
any change after the date hereof (or, in the case of any Competitive
LIBOR Loan, the date of the Competitive Bid therefor), in United
States Federal, state or foreign law or regulations (including
Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks
including such Lender of or under any United States Federal, state or
foreign law or regulations (whether or not having the force of law) by
any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reserve Requirement" shall mean, for any Interest Period
for any LIBO Rate Loan, the effective maximum rate at which reserves
(including any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period under Regulation
D by member banks of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting
the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the LIBO
Rate is to be determined or (ii) any category of extensions of credit
or other assets which includes LIBO Rate Loans.
"Set Rate Auction" shall mean a solicitation of Competitive
Bids setting forth Competitive Bid Rates pursuant to Section 2.03.
Credit Agreement
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"Set Rate Loans" shall mean Competitive Loans the interest
rates on which are determined on the basis of Competitive Bid Rates
pursuant to a Set Rate Auction.
"Significant Subsidiary" shall mean, at any time, any
Subsidiary of the Company if the revenues of such Subsidiary and its
Subsidiaries for the four consecutive fiscal quarters of such
Subsidiary most recently ended (determined on a consolidated basis
without duplication in accordance with GAAP and whether or not such
Person was a Subsidiary of the Company during all or any part of the
fiscal period of the Company referred to below) exceed an amount equal
to 7-1/2% of the revenues of the Company and its Subsidiaries for the
four consecutive fiscal quarters of the Company most recently ended
(determined on a consolidated basis without duplication in accordance
with GAAP and including such Subsidiary and its Subsidiaries on a pro
forma basis if such Subsidiary was not a Subsidiary of the Company).
"Standard & Poor's" shall mean Standard & Poor's Ratings
Services, or any successor thereto.
"Standard and Poor's Rating" shall mean, as of any date, the
rating most recently published by Standard & Poor's relating to the
unsecured, long-term, senior debt securities of the Company.
"Subsidiary" of any Person shall mean any corporation,
partnership, limited liability company or other entity of which at
least a majority of the outstanding shares of stock or other ownership
interests having by the terms thereof ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions of such corporation, partnership, limited liability company
or other entity (irrespective of whether or not at the time stock or
other ownership interests of any other class or classes of such
corporation, partnership, limited liability company or other entity
shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or
controlled by such Person and/or one or more of the Subsidiaries of
such Person. "Wholly-Owned Subsidiary" shall mean any such
corporation, partnership, limited liability company or other entity of
which all such shares or other ownership interests, other than
directors' qualifying shares or shares held by nominees to satisfy any
requirement as to minimum number of shareholders, are so owned or
controlled.
"TARGET Day" shall mean any day on which the Trans-European
Automated Real-time Gross Settlement Express Transfer (TARGET) System
(or, if such clearing system ceases to be operative, such other
clearing system (if any) determined by the Administrative Agent to be
a suitable replacement) is operating.
Credit Agreement
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"Taxes" shall have the meaning assigned to such term in
Section 5.06(a).
"Termination Letter" shall have the meaning assigned to such
term in Section 2.04(a).
"Total Capital" shall mean the sum of (i) Net Worth plus
(ii) Total Indebtedness.
"Total Consolidated Assets" shall mean, as at any time, the
total of all the assets appearing on a consolidated balance sheet of
the Company and its Subsidiaries determined in accordance with
generally accepted accounting principles applicable to the type of
business in which the Company and such Subsidiaries are engaged, and
may be determined as of a date, selected by the Company, not more than
sixty days prior to the happening of the event for which such
determination is being made.
"Total Indebtedness" shall mean, as at any time, the total
Indebtedness of the Company and its Subsidiaries determined on a
consolidated basis without duplication.
"Type" shall have the meaning assigned to such term in
Section 1.03.
"Wholly-Owned Subsidiary" shall have the meaning assigned to
such term in the definition of the term "Subsidiary".
1.02 ACCOUNTING TERMS AND DETERMINATIONS.
(a) All accounting terms used herein shall be interpreted,
and, unless otherwise disclosed to the Lenders in writing at the time
of delivery thereof in the manner described in subsection (b) below,
all financial statements and certificates and reports as to financial
matters required to be delivered to the Lenders hereunder shall be
prepared, in accordance with generally accepted accounting principles
applied on a basis consistent with those used in the preparation of
the latest financial statements furnished to the Lenders hereunder
after the date hereof (or, until such financial statements are
furnished, consistent with those used in the preparation of the
financial statements referred to in Section 7.02(a)). All
calculations made for the purposes of determining compliance with the
terms of Sections 8.07(a)(vi) and 8.10 shall, except as otherwise
expressly provided herein, be made by application of generally
accepted accounting principles applied on a basis consistent with
those used in the preparation of the annual or quarterly financial
statements furnished to the Lenders pursuant to Section 8.01 (or,
until such financial statements are furnished, consistent with those
Credit Agreement
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used in the preparation of the financial statements referred to in
Section 7.02(a)) unless (i) the Company shall have objected to
determining such compliance on such basis at the time of delivery of
such financial statements or (ii) the Majority Lenders shall so object
in writing within 30 days after delivery of such financial statements,
in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements
delivered under Section 8.01, shall mean the financial statements
referred to in Section 7.02(a)).
(b) The Company shall deliver to the Lenders at the same
time as the delivery of any annual or quarterly financial statement
under Section 8.01 (i) a description in reasonable detail of any
material variation between the application of accounting principles
employed in the preparation of such statement and the application of
accounting principles employed in the preparation of the next
preceding annual or quarterly financial statements as to which no
objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference
between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 8, the Company
shall not change the last day of its fiscal year from December 31, or
the last days of the first three fiscal quarters in each of its fiscal
years from March 31, June 30 and September 30, respectively.
1.03 TYPES OF LOANS. Loans hereunder are distinguished by
"Type" and by "Currency". The "Type" of a Loan refers to whether such
Loan is a Base Rate Loan, a Committed LIBOR Loan, a Competitive LIBOR
Loan or a Set Rate Loan, each of which constitutes a Type. Loans may
be identified by both Type and Currency.
1.04 TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall
be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any
Person shall be construed to include such Person's successors and
Credit Agreement
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assigns, (c) the words "herein", "hereof" and "hereunder", and words
of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all
references herein to Sections, Annexes, Exhibits and Schedules shall
be construed to refer to Sections of, and Annexes, Exhibits and
Schedules to, this Agreement and (e) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to
any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
SECTION 2. COMMITMENTS.
-----------
2.01 COMMITTED LOANS. Each Lender severally agrees, on the
terms of this Agreement, to make loans to the Company and any Approved
Designated Borrower in Dollars during the period from and including
the Effective Date to and including the Commitment Termination Date in
an aggregate principal amount at any one time outstanding up to but
not exceeding the amount of such Lender's Commitment as then in
effect. Subject to the terms of this Agreement, during such period
the Company and the Approved Designated Borrowers may borrow, repay
and reborrow the amount of the Commitments by means of Base Rate Loans
and Committed LIBOR Loans; PROVIDED that the aggregate outstanding
principal amount of all Committed Loans at any one time shall not
exceed the aggregate amount of the Commitments at such time; and
PROVIDED, FURTHER, that there may be no more than thirty (30)
different Interest Periods for both Committed Loans and Competitive
Loans outstanding at the same time (for which purpose Interest Periods
described in different lettered clauses of the definition of the term
"Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous).
2.02 BORROWINGS OF COMMITTED LOANS. The Company (on its
own behalf and on behalf of any other Approved Designated Borrower)
shall give the Administrative Agent (which shall promptly notify the
Lenders) notice of each borrowing hereunder of Committed Loans, which
notice shall be irrevocable and effective only upon receipt by the
Administrative Agent, shall specify with respect to the Committed
Loans to be borrowed (i) the aggregate amount to be borrowed, which
shall be at least $1,000,000 in the case of Base Rate Loans and
$5,000,000 in the case of Committed LIBOR Loans (or in either case an
integral multiple of $1,000,000 in excess thereof), (ii) the Type and
date (which shall be a Business Day) and (iii) (in the case of
Committed LIBOR Loans) the duration of the Interest Period therefor,
and each such notice shall be given not later than 11:00 a.m. New York
time on the day which is not less than the number of Business Days
prior to the date of such borrowing specified below opposite the Type
of such Loans:
Credit Agreement
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Type Number of Business Days
---- -----------------------
Base Rate Loans 0
Committed LIBOR Loans 3
Not later than 2:00 p.m. New York time on the date specified for each
borrowing of Committed Loans hereunder, each Lender shall, subject to
Section 4.01(a), make available the amount of the Committed Loan or
Loans to be made by it on such date to the Administrative Agent, at
the Administrative Agent's Account for Dollars in immediately
available funds, for account of the relevant Borrower. The amount so
received by the Administrative Agent shall, subject to the terms and
conditions of this Agreement, promptly be made available to the
relevant Borrower by depositing the same, in immediately available
funds, in an account of the relevant Borrower designated by the
Company.
2.03 COMPETITIVE LOANS.
(a) In addition to borrowings of Committed Loans, the
Company (on its own behalf and on behalf of any other Borrower) may,
as set forth in this Section 2.03, request the Lenders to make offers
to make Competitive Loans to such Borrower in Dollars or in any
Alternative Currency. The Lenders may, but shall have no obligation
to, make such offers and such Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this
Section 2.03. Competitive Loans may be Competitive LIBOR Loans or Set
Rate Loans, PROVIDED that there may be no more than thirty (30)
different Interest Periods for both Committed Loans and Competitive
Loans outstanding at the same time (for which purpose Interest Periods
described in different lettered clauses of the definition of the term
"Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous). Competitive Loans shall not constitute
a utilization of the Commitments.
(b) When any Borrower wishes to request offers to make
Competitive Loans, the Company (on its own behalf and on behalf of any
other Borrower) shall give the Administrative Agent (which shall
promptly notify the Lenders) notice in the form of Exhibit C hereto (a
"Competitive Bid Request") so as to be received no later than 11:00
a.m. New York time on (x) the fifth Business Day prior to the date of
borrowing proposed therein in the case of a LIBOR Auction or (y) the
Business Day next preceding the date of borrowing proposed therein, in
the case of a Set Rate Auction, specifying:
(i) the name of the Borrower, the Currency of such
borrowing and the proposed date of such borrowing (a "Competitive
Borrowing"), which shall be a Business Day;
Credit Agreement
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(ii) the aggregate amount of such Competitive Borrowing,
which shall be at least $5,000,000 or, in the case of Competitive
Loans in an Alternative Currency, the Foreign Currency Equivalent
thereof, and in an integral multiple of $1,000,000 in excess
thereof (or the Foreign Currency Equivalent thereof, as
applicable);
(iii) the duration of the Interest Period applicable
thereto; and
(iv) whether the Competitive Bids requested are to set
forth a Margin or a Competitive Bid Rate.
The Company (on its own behalf and on behalf of any other
Borrower) may request offers to make Competitive Loans for up to
fifteen (15) different Interest Periods in a single Competitive Bid
Request; PROVIDED that the request for each separate Interest Period
shall be deemed to be a separate Competitive Bid Request for a
separate Competitive Borrowing. Except as otherwise provided in the
preceding sentence, no Competitive Bid Request shall be given within
five Business Days of any other Competitive Bid Request.
(c) (i) Any Lender may, by notice to the Administrative
Agent in the form of Exhibit D hereto (a "Competitive Bid"), submit an
offer to make a Competitive Loan in response to any Competitive Bid
Request; PROVIDED that, if the request under Section 2.03(b) specified
more than one Interest Period, such Lender may make a single
submission containing a separate offer for each such Interest Period
and each such separate offer shall be deemed to be a separate
Competitive Bid. Each Competitive Bid must be submitted to the
Administrative Agent not later than (x) 2:00 p.m. (or, in the case of
Competitive Loans in an Alternative Currency, 11:00 a.m.) New York
time on the fourth Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) 11:00 a.m. New York
time on the proposed date of borrowing, in the case of a Set Rate
Auction; PROVIDED that any Competitive Bid submitted by Chase (or its
Applicable Lending Office) may be submitted, and may only be
submitted, if Chase (or such Applicable Lending Office) notifies the
Company of the terms of the offer contained therein not later than (x)
1:00 p.m. (or, in the case of Competitive Loans in an Alternative
Currency, 10:00 a.m.) New York time on the fourth Business Day prior
to the proposed date of borrowing, in the case of a LIBOR Auction or
(y) 10:45 a.m. New York time on the proposed date of borrowing, in the
case of a Set Rate Auction. Subject to Sections 5.03 and 9, any
Competitive Bid so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the
Company.
Credit Agreement
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(ii) Each Competitive Bid shall specify:
(A) the name of the Borrower, the Currency of such
borrowing, the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Competitive Loan for
which each such offer is being made, which principal amount
(x) may be greater than or less than the Commitment of the
quoting Lender, (y) must be at least $1,000,000 or, in the
case of a Competitive Loan in an Alternative Currency, the
Foreign Currency Equivalent thereof, and in an integral
multiple of $1,000,000 (or the Foreign Currency Equivalent
thereof, as applicable), and (z) may not exceed the
principal amount of the Competitive Borrowing for which
offers were requested;
(C) in the case of a LIBOR Auction, the margin above
or below the applicable Adjusted LIBO Rate (the "Margin")
offered for each such Competitive Loan, expressed as a
percentage (rounded to the nearest 1/10,000th of 1%) to be
added to or subtracted from the applicable Adjusted LIBO
Rate;
(D) in the case of a Set Rate Auction, the rate of
interest per annum (rounded to the nearest 1/10,000th of 1%)
(the "Competitive Bid Rate") offered for each such
Competitive Loan; and
(E) the identity of the quoting Lender.
No Competitive Bid shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth
in the applicable Competitive Bid Request and, in particular, no
Competitive Bid may be conditioned upon acceptance by the Company of
all (or some specified minimum) of the principal amount of the
Competitive Loan for which such Competitive Bid is being made;
PROVIDED that the submission of any Lender containing more than one
Competitive Bid may be conditioned on the Company not accepting offers
contained in such submission that would result in such Lender making
Competitive Loans pursuant thereto in excess of a specified aggregate
amount (the "Competitive Loan Limit").
(d) The Administrative Agent shall (x) in the case of a Set
Rate Auction, as promptly as practicable after the Competitive Bid is
submitted (but in any event not later than 11:15 a.m. New York time)
or (y) in the case of a LIBOR Auction, by 4:00 p.m. (or, in the case
of Competitive Loans in an Alternative Currency, noon) New York time
on the day a Competitive Bid is submitted, notify the Company (which
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will promptly notify the relevant Borrower if it is not the Company)
of the terms (i) of any Competitive Bid submitted by a Lender that is
in accordance with Section 2.03(c) and (ii) of any Competitive Bid
that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid submitted by such Lender with respect to the same
Competitive Bid Request. Any such subsequent Competitive Bid shall be
disregarded by the Administrative Agent unless such subsequent
Competitive Bid is submitted solely to correct a manifest error in
such former Competitive Bid. The Administrative Agent's notice to the
Company shall specify (A) the aggregate principal amount of the
Competitive Borrowing for which offers have been received and (B) the
respective principal amounts and Margins or Competitive Bid Rates, as
the case may be, so offered by each Lender (identifying the Lender
that made each Competitive Bid).
(e) Not later than (x) 11:00 a.m. New York time on the
third Business Day (or, in the case of Competitive Loans in an
Alternative Currency, 2:00 p.m. New York time on the fourth Business
Day) prior to the proposed date of borrowing, in the case of a LIBOR
Auction or (y) 12:00 p.m. noon New York time on the proposed date of
borrowing, in the case of a Set Rate Auction, the Company shall notify
the Administrative Agent of its or the relevant Borrower's, if the
Borrower is not the Company, acceptance or nonacceptance of the offers
so notified to the Company pursuant to Section 2.03(d) (which notice
shall specify the aggregate principal amount of offers from each
Lender for each Interest Period that are accepted; and the failure of
the Company to give such notice by such time shall constitute
non-acceptance) and the Administrative Agent shall promptly notify
each affected Lender of the acceptance or non-acceptance of its
offers. The notice by the Administrative Agent shall also specify the
aggregate principal amount of offers for each Interest Period that
were accepted. The Company (on its own behalf and on behalf of any
other Borrower) may accept any Competitive Bid in whole or in part
(PROVIDED that any Competitive Bid accepted in part from any Lender
shall be in an integral multiple of $1,000,000 or, in the case of a
Competitive Loan in an Alternative Currency, the Foreign Currency
Equivalent thereof (rounded to the nearest 1,000 units of such
Alternative Currency)); PROVIDED that:
(i) the aggregate principal amount of each Competitive
Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Request;
(ii) the aggregate principal amount of each Competitive
Borrowing shall be at least $5,000,000 or, in the case of a
borrowing of Competitive Loans in an Alternative Currency, the
Foreign Currency Equivalent thereof, and in an integral multiple
of $1,000,000 in excess thereof (or the Foreign Currency
Equivalent thereof, as applicable);
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(iii) acceptance of offers may, subject to clause (v)
below, only be made in ascending order of Margins or Competitive
Bid Rates, as the case may be; PROVIDED that the Company need not
accept on behalf of any Designated Borrower the offer of any
Lender if payment of the interest on the relevant Competitive
Loan would subject such Designated Borrower to the requirement of
paying any additional amounts under Section 5.06(a) or if such
interest payment would be subject to greater restrictions on
deductibility for income tax purposes than the restriction
applicable to interest payments made to other Lenders whose
offers are accepted;
(iv) the Company (on its own behalf and on behalf of any
other Borrower) may not accept any offer where the Administrative
Agent has advised the Company that such offer fails to comply
with Section 2.03(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including, without limitation,
Section 2.03(a)); and
(v) the aggregate principal amount of each Competitive
Borrowing from any Lender may not exceed any applicable
Competitive Loan Limit of such Lender.
If offers are made by two or more Lenders with the same Margins or
Competitive Bid Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal amount of
Competitive Loans in respect of which such offers are accepted shall
be allocated by the Company among such Lenders as nearly as possible
(in an integral multiple of $1,000,000 or, in the case of a borrowing
of Competitive Loans in an Alternative Currency, the Foreign Currency
Equivalent thereof) in proportion to the aggregate principal amount of
such offers. Determinations by the Company of the amounts of
Competitive Loans shall be conclusive in the absence of manifest
error.
(f) Any Lender whose offer to make any Competitive Loan has
been accepted in accordance with the terms and conditions of this
Section 2.03 shall, not later than 2:00 p.m. New York time (in the
case of Loans denominated in Dollars) or 11:00 a.m. local time in the
location of the Administrative Agent's Account (in the case of Loans
denominated in an Alternative Currency) on the date specified for the
making of such Loan, make the amount of such Loan available to the
Administrative Agent at the Administrative Agent's Account for the
Currency of such Loan in immediately available funds. The amount so
received by the Administrative Agent shall, subject to the terms and
conditions of this Agreement, promptly be made available to the
relevant Borrower on such date by depositing the same, in immediately
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available funds, in an account of the relevant Borrower designated by
the Company.
(g) The amount of any Competitive Loan made by any Lender
shall not constitute a utilization of such Lender's Commitment.
(h) Subject to the terms and conditions of this Agreement,
each Foreign Subsidiary that is a Designated Borrower agrees that any
Competitive Loan to be made hereunder by any Lender that has an
Affiliate (a "Lender Affiliate") in such Designated Borrower's
Jurisdiction may be satisfied by such Lender Affiliate at its sole
discretion (such Loans are hereinafter referred to as "Competitive
Affiliate Loans"). The Company and each Designated Borrower hereby
acknowledge and agree that any Lender Affiliate that makes a
Competitive Affiliate Loan shall have made such Loan in reliance upon,
and shall be entitled to the benefits of, this Agreement (including,
without limitation, Section 11) and shall be entitled to enforce
rights hereunder in respect of such Loan as fully as though it were a
Lender party hereto.
2.04 BORROWINGS BY DESIGNATED BORROWERS.
(a) The Company may, at any time or from time to time,
designate one or more Wholly-Owned Subsidiaries as Borrowers hereunder
by furnishing to the Administrative Agent a letter (a "Designation
Letter") in duplicate, substantially in the form of Exhibit E-1
hereto, duly completed and executed by the Company and such
Subsidiary. Any such designation of a Foreign Subsidiary shall, and
any such designation of a Domestic Subsidiary may, restrict such
Wholly-Owned Subsidiary to Competitive Loans and may exclude the
applicability of Section 5.06(a) to such Wholly-Owned Subsidiary, all
as set forth in the relevant Designation Letter. Upon any such
designation of a Subsidiary, such Subsidiary shall be a Borrower
entitled to borrow Competitive Loans only; and upon approval by all of
the Lenders (which approval shall not be unreasonably withheld) of any
Domestic Subsidiary as an Approved Designated Borrower (which approval
shall be evidenced by the Administrative Agent signing and returning
to the Company a copy of such Designation Letter) such Domestic
Subsidiary shall be an Approved Designated Borrower entitled to borrow
both Committed Loans and Competitive Loans. So long as all principal
and interest on all Loans of any Borrower (other than the Company)
hereunder have been paid in full, the Company may terminate the status
of such Borrower as a Borrower hereunder by furnishing to the
Administrative Agent a letter (a "Termination Letter"), substantially
in the form of Exhibit E-2 hereto, duly completed and executed by the
Company and such Borrower. Any Termination Letter furnished in
accordance with this Section 2.04 shall be effective upon receipt by
the Administrative Agent (which shall promptly notify the Lenders),
whereupon the Lenders shall promptly deliver to the Company (through
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the Administrative Agent) the Notes, if any, of such former Borrower.
Notwithstanding the foregoing, the delivery of a Termination Letter
with respect to any Borrower shall not terminate any obligation of
such Borrower theretofore incurred (including, without limitation,
obligations under Sections 5.01, 5.05 and 5.06) or the obligations of
the Company under Section 11 with respect thereto.
(b) The Administrative Agent is hereby authorized by the
Lenders (i) to approve (on behalf of all of the Lenders) as an
Approved Designated Borrower, and (ii) to sign and return to the
Company a Designation Letter from the Company with respect to ▇▇▇▇▇▇
Operating Company.
(c) No Designation Letter, with respect to an Approved
Designated Borrower may be amended, supplemented or otherwise modified
without the approval of all of the Lenders.
2.05 CHANGES OF COMMITMENTS.
(a) Unless theretofore reduced to such amount pursuant to
paragraphs (b) and (c) below, the aggregate amount of the Commitments
shall automatically be reduced to zero on the Commitment Termination
Date.
(b) The Company shall have the right to terminate or reduce
permanently the amount of the Commitments at any time or from time to
time upon not less than three Business Days' prior notice to the
Administrative Agent (which shall promptly notify the Lenders) of each
such termination or reduction, which notice shall specify the
effective date thereof and the amount of any such reduction (which
shall be in an integral multiple of $5,000,000) and shall be
irrevocable and effective only upon receipt by the Administrative
Agent; PROVIDED that the Company may not at any time (i) terminate the
Commitments in whole if Committed Loans are then outstanding or (ii)
reduce the aggregate amount of the Commitments below the aggregate
outstanding principal amount of the Committed Loans.
(c) The Commitments once terminated or reduced may not be
reinstated.
2.06 FEES.
(a) FACILITY FEE. The Company shall pay to the
Administrative Agent for account of each Lender a facility fee on the
daily average amount of such Lender's Commitment (whether used or
unused), for the period from and including the date hereof to but not
including the earlier of the date such Commitment is terminated and
the Commitment Termination Date, at a rate per annum equal to the
Applicable Facility Fee Rate; PROVIDED that, if such Lender continues
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to have any outstanding Loans after its Commitment is terminated, then
such facility fee shall continue to accrue on the daily aggregate
amount of outstanding Loans of such Lender from and including the date
on which its Commitment terminates to but excluding the date on which
such Lender ceases to have any outstanding Loans. Accrued facility
fee shall be payable in arrears on each Quarterly Date and on the
earlier of the date the Commitments are terminated and the Commitment
Termination Date.
(b) UTILIZATION FEE. The Borrower agrees to pay to the
Administrative Agent for account of each Lender a utilization fee at a
rate per annum equal to 0.075% of the aggregate amount of the
outstanding Loans of such Lender for each day that the aggregate
principal amount of the outstanding Loans (other than Competitive
Loans) shall exceed 50% of the aggregate outstanding Commitments.
Accrued utilization fees shall be payable on each Quarterly Date and
on the earlier of the date the Commitments terminate and the
Commitment Termination Date.
2.07 LENDING OFFICES. The Loans of each Type and Currency
made by each Lender shall be made and maintained at such Lender's
Applicable Lending Office for Loans of such Type and Currency.
2.08 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The
failure of any Lender to make any Loan to be made by it on the date
specified therefor shall not relieve any other Lender of its
obligation to make its Loan on such date, and no Lender shall be
responsible for the failure of any other Lender to make a Loan to be
made by such other Lender. The amounts payable by any Borrower at any
time hereunder and under its Notes to each Lender shall be a separate
and independent debt and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes, and it
shall not be necessary for any other Lender or the Administrative
Agent to consent to, or be joined as an additional party in, any
proceedings for such purposes.
2.09 EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in
which it shall record (i) the date, amount, maturity date and interest
rate of each Loan made hereunder, the Type and Currency thereof and
the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable
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from each Borrower to each Lender hereunder and (iii) the amount of
any sum received by the Administrative Agent hereunder for the account
of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to
clause (a) or (b) of this Section 2.09 shall be prima facie evidence
of the existence and amounts of the obligations recorded therein;
PROVIDED that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrowers to repay the Loans in
accordance with the terms of this Agreement.
(d) Any Lender may request that Loans made by it to any
Borrower be evidenced by a promissory note of the appropriate
Borrower. In such event, the appropriate Borrower shall prepare,
execute and deliver to such Lender one or more promissory notes
payable to the order of such Lender and in a form approved by the
Administrative Agent.
2.10 PREPAYMENTS. Base Rate Loans may be prepaid without
premium or penalty upon not less than one Business Day's prior notice
to the Administrative Agent (which shall promptly notify the Lenders),
which notice shall specify the prepayment date (which shall be a
Business Day) and the amount of the prepayment (which, in the case of
partial prepayments, shall be in an integral multiple of $1,000,000)
and shall be irrevocable and effective only upon receipt by the
Administrative Agent, PROVIDED that interest on the principal of any
Base Rate Loans prepaid, accrued to the prepayment date, shall be paid
on the prepayment date.
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST.
----------------------------------
3.01 REPAYMENT OF LOANS. Each Borrower hereby promises to
pay to the Administrative Agent for account of each Lender the
principal amount of each Loan made by such Lender to such Borrower in
the Currency of such Loan, and each Loan shall mature, on the last day
of the Interest Period for such Loan.
3.02 INTEREST.
(a) Each Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid
principal amount of each Loan made by such Lender to such Borrower, in
the Currency of such Loan, for the period commencing on the date of
such Loan to but excluding the date such Loan shall be paid in full,
at the following rates per annum:
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(i) if such Loan is a Base Rate Loan, the Base Rate (as in
effect from time to time);
(ii) if such Loan is a Committed LIBOR Loan, the Adjusted
LIBO Rate for such Loan for the Interest Period therefor plus the
Applicable Margin;
(iii) if such Loan is a Competitive LIBOR Loan, the
Adjusted LIBO Rate for such Loan for the Interest Period therefor
plus (or minus) the Margin quoted by the Lender making such Loan
in accordance with Section 2.03; and
(iv) if such Loan is a Set Rate Loan, the Competitive Bid
Rate for such Loan for the Interest Period therefor quoted by the
Lender making such Loan in accordance with Section 2.03.
Notwithstanding the foregoing, each Borrower hereby promises to pay to
the Administrative Agent for account of each Lender interest at the
applicable Post-Default Rate on any principal of any Loan made by such
Lender to such Borrower, and (to the fullest extent permitted by law)
on any other amount payable by such Borrower hereunder or under the
Note of such Borrower held by such Lender to or for account of such
Lender, which shall not be paid in full when due (whether at stated
maturity, by acceleration or otherwise), for the period commencing on
the due date thereof until the same is paid in full.
(b) Accrued interest on each Loan shall be payable on the
last day of the Interest Period therefor and, if such Interest Period
is longer than three months, at three-month intervals following the
first day of such Interest Period, except that interest payable at the
Post-Default Rate shall be payable from time to time on demand.
(c) Promptly after the determination of any Adjusted LIBO
Rate provided for herein, the Administrative Agent shall (i) notify
the Lenders to which interest at such Adjusted LIBO Rate is payable
and the Company thereof and (ii) at the request of the Company,
furnish to the Company a copy of Page 3750 of the Telerate Service (or
such successor or substitute page of such Service, or any successor to
or substitute for such service, providing rate quotations comparable
to those currently provided on such page for such Service) on the
basis of which the relevant LIBO Rate was determined. At any time
that the Administrative Agent determines the Adjusted LIBO Rate on a
basis other than using Page 3750 of the Telerate Service, the
Administrative Agent shall promptly notify the Company.
3.03 REDENOMINATION. Anything in Section 3.01 or 3.02 to
the contrary notwithstanding, if any Borrower shall fail to pay any
principal or interest denominated in any Alternative Currency on the
original due date therefor (without giving effect to any acceleration
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under Section 9), the amount so in default shall automatically be
redenominated in Dollars on such original due date therefor in an
amount equal to the Dollar Equivalent therefor.
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
------------------------------------------------
4.01 PAYMENTS.
(a) Except to the extent otherwise provided herein, all
payments of principal of and interest on Loans made in Dollars, and
other amounts (other than the principal of and interest on Loans made
in an Alternative Currency) payable by any Obligor under this
Agreement and the Notes, shall be made in Dollars, and all payments of
principal of and interest on Loans made in an Alternative Currency
shall (except as otherwise provided in Section 3.03) be made in such
Alternative Currency, in immediately available funds, without
deduction, set-off or counterclaim, to the Administrative Agent's
Account for such Currency, for account of the Lenders, not later than
2:00 p.m. New York time (in the case of Loans denominated in Dollars)
or 11:00 a.m. local time in the location of the Administrative Agent's
Account (in the case of Loans denominated in an Alternative Currency),
on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made
on the next succeeding Business Day), PROVIDED that if a new Loan is
to be made by any Lender to any Borrower on a date such Borrower is to
repay any principal of an outstanding Loan of such Lender in the same
Currency, such Lender shall apply the proceeds of such new Loan to the
payment of the principal to be repaid and only an amount equal to the
difference between the principal to be borrowed and the principal to
be repaid shall be made available by such Lender to the Administrative
Agent as provided in Section 2.02 or paid by such Borrower to the
Administrative Agent pursuant to this Section 4.01, as the case may
be.
(b) If any Borrower shall default in the payment when due
of any principal, interest or other amounts to be made by such
Borrower under this Agreement or the Notes, any Lender for whose
account any such payment is to be made may (but shall not be obligated
to) debit the amount of any such payment due such Lender which is not
made by such time to any ordinary deposit account of such Borrower
with such Lender (with notice to the Company and the Administrative
Agent).
(c) The Company on its behalf and on behalf of any other
Borrower shall, at the time of making each payment under this
Agreement or any Note for account of any Lender, specify to the
Administrative Agent the Loans or other amounts payable by such
Borrower hereunder to which such payment is to be applied (and in the
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event that the payor fails to so specify, or if an Event of Default
has occurred and is continuing, such Lender may apply such payment
received by it from the Administrative Agent to such amounts then due
and owing to such Lender as such Lender may determine).
(d) Each payment received by the Administrative Agent under
this Agreement or any Note for account of any Lender shall be paid
promptly to such Lender, in immediately available funds.
(e) If the due date of any payment under this Agreement or
any Note would otherwise fall on a day which is not a Business Day
such date shall be extended to the next succeeding Business Day and
interest shall be payable for any principal so extended for the period
of such extension.
4.02 PRO RATA TREATMENT. Except to the extent otherwise
provided herein: (a) each borrowing from the Lenders of Committed
Loans under Section 2.01 shall be made from the Lenders, each payment
of fees under Section 2.06 shall be made for account of the Lenders,
and each reduction of the amount or termination of the Commitments
under Section 2.05 shall be applied to the Commitments of the Lenders,
pro rata according to the amounts of their respective Commitments; (b)
each payment of principal of Committed Loans by any Borrower shall be
made for account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Committed Loans held by the
Lenders; and (c) each payment of interest on Committed Loans by any
Borrower shall be made for account of the Lenders pro rata in
accordance with the amounts of interest due and payable to the
respective Lenders; PROVIDED that, if an Event of Default shall have
occurred and be continuing, each payment of principal of and interest
on the Loans and other amounts owing hereunder by any Borrower shall
be made for account of the Lenders pro rata in accordance with the
aggregate amounts of all principal of and interest on the Loans and
all other amounts owing hereunder by such Borrower then due and
payable to the respective Lenders.
4.03 COMPUTATIONS. Interest on Loans and the fees payable
pursuant to Section 2.06 shall be computed on the basis of a year of
360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable;
PROVIDED that interest on Base Rate Loans and Loans in Pounds Sterling
shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
4.04 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
Unless the Administrative Agent shall have been notified by a Lender
or the Company on behalf of any Borrower (each, a "Payor") prior to
the time by, and on the date on, which such Payor is scheduled to make
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payment to the Administrative Agent of (in the case of a Lender) the
proceeds of a Loan to be made by it hereunder or (in the case of any
Borrower) a payment to the Administrative Agent for account of one or
more of the Lenders hereunder (such payment being herein called the
"Required Payment"), which notice shall be effective upon receipt,
that it does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that the
Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof
available to the intended recipient(s) on such date; and, if the Payor
has not in fact made the Required Payment to the Administrative Agent,
the recipient(s) of such payment shall, on demand, repay to the
Administrative Agent the amount so made available together with
interest thereon in respect of each day during the period commencing
on the date such amount was so made available by the Administrative
Agent to but not including the date the Administrative Agent recovers
such amount (the "Advance Period") at a rate per annum equal to (a) if
the recipient is a Borrower, the Base Rate in effect on such day and
(b) if the recipient is a Lender, the Federal Funds Rate in effect on
such day; and, if such recipient(s) shall fail promptly to make such
payment, the Administrative Agent shall be entitled to recover such
amount, on demand, from the Payor, together with interest thereon for
each day during the Advance Period at a rate per annum equal to (i) if
the Payor is a Borrower, the rate of interest payable on the Required
Payment as provided in the second sentence of Section 3.02(a) and (ii)
if the Payor is a Lender, during the period commencing on the date
such amount was so made available to but excluding the date three
Business Days following such date, the Federal Funds Rate in effect on
such day and, thereafter, the Base Rate in effect on such day.
4.05 SET-OFF; SHARING OF PAYMENTS.
(a) Each Obligor agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or counterclaim a
Lender may otherwise have, each Lender shall be entitled, at its
option, to offset balances held by it for account of such Obligor at
any of its offices, in Dollars or in any other Currency, against any
principal of or interest on any of such Lender's Loans which is not
paid when due (regardless of whether such balances are then due to
such Obligor) in which case it shall promptly notify such Obligor
(through notice to the Company) and the Administrative Agent thereof,
PROVIDED that such Lender's failure to give such notice shall not
affect the validity thereof.
(b) If any Lender shall obtain payment of any principal of
or interest on any Committed Loan made by it under this Agreement
through the exercise of any right of set-off, bankers' lien or
counterclaim or similar right or otherwise, and, as a result of such
payment, such Lender shall have received a greater percentage of the
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amounts then due hereunder to such Lender in respect of Committed
Loans than the percentage received by any other Lenders, it shall
promptly purchase from such other Lenders participations in (or, if
and to the extent specified by such Lender, direct interests in) the
Committed Loans made by such other Lenders (or in the interest
thereon, as the case may be) in such amounts, and make such other
adjustments from time to time as shall be equitable, to the end that
all the Lenders shall share the benefit of such excess payment (net of
any expenses which may be incurred by such Lender in obtaining or
preserving such excess payment) pro rata in accordance with the unpaid
principal and interest on the Committed Loans held by each of the
Lenders. To such end all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or
otherwise) if such payment is rescinded or must otherwise be restored.
Each Obligor agrees that any Lender so purchasing a participation (or
direct interest) in the Committed Loans made by other Lenders (or in
the interest thereon, as the case may be) may exercise all rights of
set-off, bankers' lien, counterclaim or similar rights with respect to
such participation as fully as if such Lender were a direct holder of
Loans (or in the interest thereon, as the case may be) in the amount
of such participation. Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any
Lender to exercise, and retain the benefits of exercising, any such
right with respect to any other indebtedness or obligation of any
Obligor. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a set-off
to which this Section 4.05 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this
Section 4.05 to share in the benefits of any recovery on such secured
claim.
SECTION 5. YIELD PROTECTION AND ILLEGALITY.
-------------------------------
5.01 ADDITIONAL COSTS.
(a) Each Borrower shall pay directly to each Lender from
time to time such amounts as such Lender may determine to be necessary
to compensate such Lender for any costs that such Lender determines
are attributable to its making or maintaining of any LIBO Rate Loans
or Set Rate Loans or its obligation to make any LIBO Rate Loans
hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein
called "Additional Costs"), resulting from any Regulatory Change that:
(i) changes the basis of taxation of any amounts payable to
such Lender under this Agreement or its Notes in respect of any
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of such Loans (other than taxes imposed on or measured by the
overall net income of such Lender or of its Applicable Lending
Office for any of such Loans by the jurisdiction in which such
Lender has its principal office or such Applicable Lending
Office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements (other than the Reserve Requirement utilized
in the determination of the Adjusted LIBO Rate for such Loan and
Mandatory Costs utilized in the determination of the LIBO Rate
for such Loan) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, such
Lender (including, without limitation, any of such Loans or any
deposits referred to in the definition of "LIBO Rate" in Section
1.01), or any commitment of such Lender (including, without
limitation, the Commitment of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement
or its Notes (or any of such extensions of credit or liabilities)
or its Commitment.
If any Lender requests compensation from any Borrower under this
Section 5.01(a), the Company may, by notice to such Lender (with a
copy to the Administrative Agent), suspend the obligation of such
Lender thereafter to make LIBO Rate Loans until the Regulatory Change
giving rise to such request ceases to be in effect (in which case the
provisions of Section 5.04 shall be applicable), PROVIDED that such
suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the provisions of
paragraph (a) of this Section 5.01, in the event that, by reason of
any Regulatory Change, any Lender either (i) incurs Additional Costs
based on or measured by the excess above a specified level of the
amount of a category of deposits or other liabilities of such Lender
that includes deposits by reference to which the interest rate on LIBO
Rate Loans is determined as provided in this Agreement or a category
of extensions of credit or other assets of such Lender that includes
LIBO Rate Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if
such Lender so elects by notice to the Company (with a copy to the
Administrative Agent), the obligation of such Lender to make LIBO Rate
Loans hereunder shall be suspended until such Regulatory Change ceases
to be in effect (in which case the provisions of Section 5.04 shall be
applicable).
(c) Without limiting the effect of the foregoing provisions
of this Section 5.01 (but without duplication), the Company shall pay
directly to each Lender from time to time on request such amounts as
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such Lender may determine to be necessary to compensate such Lender
(or, without duplication, the bank holding company of which such
Lender is a subsidiary) for any costs that it determines are
attributable to the maintenance by such Lender (or any Applicable
Lending Office or such bank holding company), pursuant to any law or
regulation or any interpretation, directive or request (whether or not
having the force of law and whether or not failure to comply therewith
would be unlawful) of any court or governmental or monetary authority
(i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not
having the force of law and whether or not the failure to comply
therewith would be unlawful) issued after the date hereof by any
government or governmental or supervisory authority implementing at
the national level the Basel Accord (including, without limitation,
the Final Risk-Based Capital Guidelines), of capital in respect of its
Commitment or Loans (such compensation to include, without limitation,
an amount equal to any reduction of the rate of return on assets or
equity of such Lender (or any Applicable Lending Office or such bank
holding company) to a level below that which such Lender (or any
Applicable Lending Office or such bank holding company) would have
achieved with respect to its Commitment or Loans but for such law,
regulation, interpretation, directive or request).
(d) Each Lender shall notify the Company of any event
occurring after the date hereof entitling such Lender to compensation
under paragraph (a) or (c) of this Section 5.01 as promptly as
practicable, but in any event within 45 days, after such Lender
obtains actual knowledge thereof. If any Lender fails to give such
notice within 45 days after it obtains actual knowledge of such an
event, such Lender shall, with respect to compensation payable
pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for
costs incurred from and after the date 45 days prior to the date that
such Lender does give such notice. Each Lender will furnish to the
Company a certificate setting forth the basis and amount of each
request by such Lender for compensation under paragraph (a) or (c) of
this Section 5.01. Determinations and allocations by any Lender for
purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) or (b) of this Section 5.01, or of the
effect of capital maintained pursuant to paragraph (c) of this Section
5.01, on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in respect of
Loans, and of the amounts required to compensate such Lender under
this Section 5.01, shall be conclusive absent manifest error, PROVIDED
that such determinations and allocations are made on a reasonable
basis.
(e) Each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by any event
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specified in paragraphs (a), (b) or (c) of this Section 5.01 or in
Section 5.03 if such designation will avoid the need for, or reduce
the amount of, such compensation or suspension, as the case may be,
and will not, in the sole opinion of such Lender, be disadvantageous
to such Lender.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the
contrary notwithstanding:
(a) if the LIBO Rate for any Currency is to be determined
under the second paragraph of the definition of "LIBO Rate" and
the Administrative Agent determines (which determination shall be
conclusive) that no quotation from any Reference Lender of
interest rates for the relevant deposits referred to in such
paragraph are not being provided in the relevant amounts or for
the relevant maturities for purposes of determining rates of
interest for LIBO Rate Loans as provided herein; or
(b) if the LIBO Rate for any Currency is being determined
under the second paragraph of the definition of "LIBO Rate" and
the Majority Lenders determine (or any Lender that has
outstanding a Competitive Bid with respect to a Competitive LIBOR
Loan, determines), which determination shall be conclusive, and
notify (or notifies, as the case may be) the Administrative Agent
that the relevant rates of interest referred to in the second
paragraph of the definition of "LIBO Rate" do not adequately
cover the cost to such Lenders (or such quoting Lender) of making
or maintaining its LIBO Rate Loans in such Currency;
then the Administrative Agent shall give the Company and each Lender
prompt notice thereof, and so long as such condition remains in
effect, the Lenders (or such quoting Lender) shall be under no
obligation to make additional LIBO Rate Loans in such Currency.
5.03 ILLEGALITY. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any Lender
or its Applicable Lending Office to honor its obligation to make or
maintain LIBO Rate Loans hereunder in any Currency, then such Lender
shall promptly notify the Company thereof (with a copy to the
Administrative Agent) and such Lender's obligation to make Committed
LIBOR Loans in such Currency shall be suspended until such time as
such Lender may again make and maintain Committed LIBOR Loans in such
Currency (in which case the provisions of Section 5.04 shall be
applicable), and such Lender shall no longer be obligated to make any
Competitive LIBOR Loan in such Currency that it has offered to make.
5.04 BASE RATE LOANS PURSUANT TO SECTIONS 5.01 AND 5.03.
If the obligation of any Lender to make any LIBO Rate Loans in Dollars
shall be suspended pursuant to Section 5.01 or 5.03 (Loans of such
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type being herein called "Affected Loans" and such type being herein
called the "Affected Type"), all Loans in Dollars (other than
Competitive Loans) which would otherwise be made by such Lender as
Loans of the Affected Type shall be made instead as Base Rate Loans
(and, if an event referred to in Section 5.01(b) or 5.03 has occurred
and such Lender so requests by notice to the Company with a copy to
the Administrative Agent, all Affected Loans of such Lender then
outstanding shall be automatically converted into Base Rate Loans on
the date specified by such Lender in such notice) and, to the extent
that Affected Loans are so made as (or converted into) Base Rate
Loans, all payments of principal which would otherwise be applied to
such Lender's Affected Loans shall be applied instead to its Base Rate
Loans.
5.05 COMPENSATION. Each Borrower shall pay to the
Administrative Agent for account of each Lender, upon the request of
such Lender through the Administrative Agent, such amount or amounts
as shall be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost or expense which such Lender
determines are attributable to:
(a) any payment or conversion of a LIBO Rate Loan or a Set
Rate Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 9)
on a date other than the last day of the Interest Period for such
Loan; or
(b) any failure by such Borrower for any reason (excluding
only failure due solely to a default by any Lender or the
Administrative Agent in its obligation to provide funds to such
Borrower hereunder but including, without limitation, the failure
of any of the conditions precedent specified in Section 6 to be
satisfied) to borrow a LIBO Rate Loan or a Set Rate Loan from
such Lender on the date for such borrowing specified in the
relevant notice of borrowing given pursuant to Section 2.02 or
2.03(b).
Without limiting the effect of the preceding sentence, such
compensation shall include, in the case of a Loan, an amount equal to
the excess, if any, of (i) the amount of interest which otherwise
would have accrued on the principal amount so paid or converted or not
borrowed for the period from the date of such payment, conversion or
failure to borrow to the last day of the Interest Period for such Loan
(or, in the case of a failure to borrow, the Interest Period for such
Loan which would have commenced on the date specified for such
borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the interest component of the amount such Lender
would have bid in the London interbank market for deposits in the
applicable Currency of leading banks (if such Loan is a LIBO Rate
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Loan) or in the United States certificate of deposit market for
issuance at face value of certificates of deposit for Dollar deposits
(if such Loan is a Set Rate Loan) in amounts comparable to such
principal amount and with maturities comparable to such period (as
reasonably determined by such Lender).
5.06 TAXES.
(a) Each Approved Designated Borrower agrees to pay to each
Lender such additional amounts as are necessary in order that the net
payment of any amount due to such Lender hereunder after deduction for
or withholding in respect of any Taxes imposed with respect to such
payment will not be less than the amount stated herein to be then due
and payable, PROVIDED that the foregoing obligation to pay such
additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such
Lender is, on the date such Borrower became a Borrower hereunder
(which, in the case of the Company and the Approved Designated
Borrowers listed in Section 2.04(b), means the date hereof and,
in the case of any other Approved Designated Borrower, means the
date of the Designation Letter of such Approved Designated
Borrower) or (if later) on the date such Lender becomes a Lender
hereunder as provided in Section 12.05(b) and on the date of any
change in the Applicable Lending Office of such Lender, entitled
to a complete exemption from withholding or deduction by such
Approved Designated Borrower of Taxes on all interest to be
received by such Lender hereunder in respect of the Loans made by
such Lender to such Approved Designated Borrower, or
(ii) to any such Taxes required to be deducted or withheld
solely by reason of the failure of such Lender to comply with
applicable certification, information, documentation or other
reporting requirements concerning the nationality, residence,
identity or connections with such Borrower's Jurisdiction if such
compliance is required by treaty, statute or regulation as a
precondition to relief or exemption from such Taxes.
For the purposes of this Section 5.06(a), the term "Taxes" shall mean
with respect to any Approved Designated Borrower all present and
future income, stamp, registration and other taxes and levies,
imposts, deductions, charges, compulsory loans and withholdings
whatsoever, and all interest, penalties or similar amounts with
respect thereto, now or hereafter imposed, assessed, levied or
collected by such Approved Designated Borrower's Jurisdiction on or in
respect of the Credit Documents, the principal of and interest on the
Loans and any other amounts payable under any of the Credit Documents,
the recording, registration, notarization or other formalization of
any thereof, the enforcement thereof or the introduction thereof in
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any judicial proceedings, or on or in respect of any payments of
principal, interest, premium, charges, fees or other amounts made on,
under or in respect of any thereof (excluding, however, income or
franchise taxes imposed on or measured by the overall net income or
capital of a Lender (or its Applicable Lending Office) by such
Approved Designated Borrower's Jurisdiction as a result of such Lender
being organized under the laws of or resident in such Approved
Designated Borrower's Jurisdiction or of its Applicable Lending Office
being located or carrying on business in such Approved Designated
Borrower's Jurisdiction).
(b) Within 30 days after paying any amount to the
Administrative Agent or any Lender from which it is required by law to
make any deduction or withholding, and within 30 days after it is
required by law to remit such deduction or withholding to any relevant
taxing or other authority, the relevant Borrower shall deliver to the
Administrative Agent for delivery to such Lender evidence satisfactory
to such Lender of such deduction, withholding or payment (as the case
may be).
5.07 REPLACEMENT OF LENDERS. If any Lender requests
compensation pursuant to Section 5.01 or 5.06, or any Lender's
obligation to make Loans of any Type or denominated in any Currency
shall be suspended pursuant to Section 5.01 (any such Lender
requesting such compensation, or whose obligations are so suspended,
being herein called a "Requesting Lender"), the Company, upon three
Business Days' notice to the Administrative Agent given when no
Default shall have occurred and be continuing, may require that such
Requesting Lender transfer all of its right, title and interest under
this Agreement to any bank or other financial institution identified
by the Company that is satisfactory to the Administrative Agent (a) if
such bank or other financial institution (a "Proposed Lender") agrees
to assume all of the obligations of such Requesting Lender hereunder,
and to purchase all of such Requesting Lender's Loans hereunder for
consideration equal to the aggregate outstanding principal amount of
such Requesting Lender's Loans, together with interest thereon to the
date of such purchase, and satisfactory arrangements are made for
payment to such Requesting Lender of all other amounts payable
hereunder to such Requesting Lender on or prior to the date of such
transfer (including any fees accrued hereunder and any amounts that
would be payable under Section 5.05 as if all of such Requesting
Lender's Loans were being prepaid in full on such date) and (b) if
such Requesting Lender has requested compensation pursuant to Section
5.01 or 5.06, such Proposed Lender's aggregate requested compensation,
if any, pursuant to said Section 5.01 or 5.06 with respect to such
Requesting Lender's Loans is lower than that of the Requesting Lender.
Subject to the provisions of Section 12.05(b), such Proposed Lender
shall be a "Lender" for all purposes hereunder. Without prejudice to
the survival of any other agreement of the Company hereunder the
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agreements of the Company contained in Sections 5.01, 5.06 and 12.03
(without duplication of any payments made to such Requesting Lender by
the Company or the Proposed Lender) shall survive for the benefit of
such Requesting Lender under this Section 5.07 with respect to the
time prior to such replacement.
SECTION 6. CONDITIONS PRECEDENT.
--------------------
6.01 EFFECTIVE DATE. The obligations of the Lenders to
make Loans hereunder shall not become effective until the date on
which the Administrative Agent shall have received each of the
following documents (with sufficient copies for each Lender), each of
which shall be satisfactory to the Administrative Agent (and to the
extent specified below, to each Lender) in form and substance (or such
condition shall have been waived in accordance with Section 12.01):
(a) Certified copies of the charter and by-laws of, and all
corporate action taken by, the Company approving this Agreement and
the Notes (if any) to be made by the Company, borrowings by the
Company and the guarantee of the Company set forth in Section 11
(including, without limitation, a certificate setting forth the
resolutions of the Board of Directors of the Company adopted in
respect of the transactions contemplated hereby).
(b) A certificate of the Company in respect of each of the
officers (i) who is authorized to sign this Agreement, the Notes,
Competitive Bid Requests, Designation Letters and Termination Letters,
together with specimen signatures, and (ii) who will, until replaced
by another officer or officers duly authorized for that purpose, act
as its representative for the purposes of signing documents and giving
notices and other communications in connection herewith and with the
Notes and the transactions contemplated hereby and thereby. The
Administrative Agent and each Lender may conclusively rely on such
certificate until they receive notice in writing from the Company to
the contrary.
(c) An opinion dated the Effective Date of Schiff, Hardin &
▇▇▇▇▇, special Illinois counsel to the Company substantially in the
form of Exhibit A-1 hereto (and the Company hereby instructs such
counsel to deliver such opinion to the Lenders and the Administrative
Agent); and an opinion dated the Effective Date of ▇▇▇▇▇▇ ▇▇▇▇▇,
Associate General Counsel to the Company, substantially in the form of
Exhibit A-2 hereto (and the Company hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agent).
(d) An opinion dated the Effective Date of Milbank, Tweed,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to the Administrative
Agent, substantially in the form of Exhibit B hereto.
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6.02 INITIAL AND SUBSEQUENT CREDIT EXTENSIONS. The
obligation of any Lender to make any Credit Extension hereunder
(including, without limitation, the initial Credit Extension
hereunder) is subject to the further conditions precedent that, as of
the date of such Credit Extension and after giving effect thereto and
the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Company
in Section 7 (other than Sections 7.02(c) and 7.03, except if
such Credit Extension is made on the Effective Date) shall be
true on and as of the date of such Credit Extension with the same
force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date).
Each notice of borrowing by the Company hereunder (whether on its own
behalf or on behalf of any other Borrower) shall constitute a
certification by the Company to the effect set forth in the preceding
sentence (both as of the date of such notice and, unless the Company
otherwise notifies the Administrative Agent prior to the date of such
Credit Extension, as of the date of such Credit Extension).
SECTION 7. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Company represents and warrants to the Lenders that:
7.01 CORPORATE EXISTENCE. Each of the Company and its
Significant Subsidiaries: (a) is a corporation duly organized and
validly existing under the laws of the jurisdiction of its
incorporation; (b) has all requisite corporate power, and has all
material governmental licenses, authorizations, consents and
approvals, necessary to own its assets and carry on its business as
now being or as proposed to be conducted; and (c) is qualified to do
business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary except where
failure so to qualify would not have a Material Adverse Effect.
7.02 FINANCIAL CONDITION.
(a) The consolidated balance sheet of the Company and its
Subsidiaries as at December 31, 1999 and the related consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for the fiscal year ended on said date,
with the opinion thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, heretofore furnished
to each of the Lenders, are complete and correct and fairly present
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the consolidated financial condition of the Company and its
Subsidiaries as at said date and the consolidated results of their
operations for the fiscal year ended on said date, all in accordance
with generally accepted accounting principles. Neither the Company
nor any of its Subsidiaries had on said date any material contingent
liabilities, material liabilities for taxes, material unusual forward
or long-term commitments or material unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected
or provided for in said balance sheet as at said date.
(b) The consolidated balance sheet of the Company and its
Subsidiaries as at June 30, 2000 and the related consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for the six-month period ended on said
date, heretofore furnished to each of the Lenders, are complete and
correct and fairly present the consolidated financial condition of the
Company and its Subsidiaries as at said date and the consolidated
results of their operations for the six-month period ended on said
date, all in accordance with generally accepted accounting principles.
Neither the Company nor any of its Subsidiaries had on said date any
material contingent liabilities, material liabilities for taxes,
material unusual forward or long-term commitments or material
unrealized or anticipated losses from any unfavorable commitments,
except as referred to or reflected or provided for in said balance
sheet as at said date.
(c) Since December 31, 1999, there has been no material
adverse change in the consolidated financial condition, operations,
business or prospects of the Company and its Subsidiaries (taken as a
whole).
7.03 LITIGATION. To the best knowledge and belief of the
Company, there are no legal or arbitral proceedings or any proceedings
by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of the Company) threatened against the
Company or any of its Subsidiaries which could reasonably be expected
to have a Material Adverse Effect.
7.04 NO BREACH. The making or performance of this
Agreement or the Notes, and the consummation of the transactions
herein contemplated, will not conflict with or result in a breach of,
or require any consent under, the charter or by-laws of the Company or
any applicable law or regulation, or any order, writ, injunction or
decree of any court or governmental authority or agency, or any
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound or to which
any of them is subject, or constitute a default under any such
agreement or instrument, or constitute a tortious interference with
any agreement, or result in the creation or imposition of any Lien
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upon any of the revenues or assets of the Company or any of its
Subsidiaries pursuant to the terms of any such agreement or
instrument.
7.05 CORPORATE ACTION. The Company has all necessary
corporate power and authority to make and perform its obligations
under this Agreement and the Notes of the Company; the making and
performance of this Agreement and the Notes of the Company by the
Company have been duly authorized by all necessary corporate action on
the part of the Company; and this Agreement has been duly and validly
executed and delivered by the Company and constitutes, and each of the
Notes of the Company when executed and delivered by the Company for
value will constitute, its legal, valid and binding obligation,
enforceable in accordance with their respective terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally.
7.06 APPROVALS. No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or
regulatory authority or agency are necessary for the execution,
delivery or performance by the Company of this Agreement or the Notes
of the Company or for the validity or enforceability of any thereof.
7.07 USE OF CREDIT. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying
margin stock (within the meaning of Regulation U or X of the Board of
Governors of the Federal Reserve System), and no part of the proceeds
of any Credit Extension hereunder will be used in a manner that will
cause the Company to violate said Regulation X or any Lender to
violate said Regulation U.
7.08 ERISA. Each of the Company and each ERISA Affiliate
has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each of its Plans and is (and to
the best of its knowledge in the case of any Multiemployer Plan is) in
compliance in all material respects with the currently applicable
provisions of ERISA and the Code, and has not incurred any liability
on account of the termination of any of its Plans to the PBGC or any
of its Plans and has not incurred any withdrawal liability to any
Multiemployer Plan.
7.09 CREDIT AGREEMENTS. Schedule I hereto is a complete
and correct list, as of the date hereof, of each credit agreement,
loan agreement, indenture, purchase agreement, Guarantee or other
arrangement (other than a letter of credit) providing for or otherwise
relating to any extension of credit (or commitment for any extension
Credit Agreement
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of credit) to, or Guarantee by, the Company or any of its Subsidiaries
the aggregate principal or face amount of which equals or exceeds (or
may equal or exceed) $1,000,000 and the aggregate principal or face
amount outstanding or which may become outstanding under each such
arrangement is correctly described in said Schedule I.
7.10 HAZARDOUS MATERIALS. The Company and each of its
Subsidiaries have obtained all permits, licenses and other
authorizations that are required under all Environmental Laws, except
to the extent failure to have any such permit, license or
authorization would not have a Material Adverse Effect. The Company
and each of its Subsidiaries are in compliance with the terms and
conditions of all such permits, licenses and authorizations, and are
also in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in any applicable Environmental Law
or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved
thereunder, except to the extent failure to comply would not have a
Material Adverse Effect. Except as heretofore disclosed to the
Lenders, there have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or that are in
the possession of the Company or any of its Subsidiaries with respect
to any property or facility now or previously owned or leased by the
Company or any of its Environmental Affiliates which reveal facts or
circumstances that could reasonably be expected to have a Material
Adverse Effect.
7.11 TAXES. The Company and its Subsidiaries are members
of an affiliated group of corporations filing consolidated returns for
Federal income tax purposes, of which the Company is the "common
parent" (within the meaning of Section 1504 of the Code) of such
group. The Company and its Subsidiaries have filed all Federal income
tax returns and all other material tax returns and information
statements that are required to be filed by them and have paid all
taxes due pursuant to such returns or pursuant to any assessment
received by the Company or any of its Subsidiaries. The charges,
accruals and reserves on the books of the Company and its Subsidiaries
in respect of taxes and other governmental charges are, in the opinion
of the Company, adequate. The United States Federal income tax
returns of the Company and its Subsidiaries have been examined and/or
closed through the fiscal years of the Company and its Subsidiaries
ended on or before December 31, 1997. The Company has not given or
been requested to give a waiver of the statute of limitations relating
to the payment of Federal, state, local and foreign taxes or other
impositions.
7.12 TRUE AND COMPLETE DISCLOSURE. The information,
reports, financial statements, exhibits and schedules furnished in
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writing by or on behalf of the Company to the Lenders in connection
with the negotiation, preparation or delivery of this Agreement or
included herein or delivered pursuant hereto, when taken as a whole do
not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in
light of the circumstances under which they are made, not misleading.
All written information furnished after the date hereof by the Company
and its Subsidiaries to the Lenders in connection with this Agreement
and the transactions contemplated hereby will be true, complete and
accurate in every material respect, or (in the case of projections)
based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the
Company that could reasonably be expected to have a Material Adverse
Effect that has not been disclosed herein or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing
furnished to the Lenders for use in connection with the transactions
contemplated hereby.
7.13 SUBSIDIARIES. As of the date hereof, each of the
Company and its Subsidiaries (as disclosed in the periodic reports
which the Company has filed with the Securities and Exchange
Commission) owns, free and clear of Liens, and has the unencumbered
right to vote all of its outstanding ownership interests in, each
Subsidiary held by it and all of the issued and outstanding capital
stock of each such Person is validly issued, fully paid and
nonassessable.
7.14 COMPLIANCE WITH LAW. As of the date hereof, the
Company and its Subsidiaries are in material compliance with all
applicable laws and regulations, except to the extent that failure to
comply therewith would not have a Material Adverse Effect.
7.15 DESIGNATED BORROWER APPROVALS. No authorizations,
approvals or consents of, and no filings or registrations with, any
governmental or regulatory authority or agency that have not been
obtained by the time any Subsidiary of the Company becomes a
Designated Subsidiary are necessary for the execution, delivery or
performance by such Designated Borrower of the Designation Letter of
such Designated Borrower, this Agreement or the Notes of such
Designated Borrower or for the validity or enforceability of any
thereof or for the borrowing by such Designated Borrower hereunder.
SECTION 8. COVENANTS OF THE COMPANY.
------------------------
The Company agrees that, so long as any of the Commitments
are in effect and until payment in full of all Loans hereunder, all
interest thereon and all other amounts payable by each Borrower
hereunder:
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8.01 FINANCIAL STATEMENTS. The Company shall deliver to
each of the Lenders:
(a) as soon as available and in any event within 60 days
after the end of each of the fiscal quarterly periods of each
fiscal year of the Company, consolidated statements of income,
cash flows and stockholders' equity of the Company and its
Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheet as at the end
of such period, setting forth in each case in comparative form
the corresponding figures for the corresponding period in the
preceding fiscal year, and accompanied by a certificate of a
senior financial officer of the Company, which certificate shall
state that said financial statements fairly present the
consolidated financial condition and results of operations of the
Company and its Subsidiaries, in accordance with generally
accepted accounting principles, as at the end of (and for) such
period (subject to normal year-end audit adjustments).
(b) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, consolidated
statements of income, cash flows and stockholders' equity of the
Company and its Subsidiaries for such year and the related
consolidated balance sheet as at the end of such year, setting
forth in each case in comparative form the corresponding figures
for the preceding fiscal year, and accompanied by an opinion
thereon of independent certified public accountants of recognized
national standing, which opinion shall state that said financial
statements fairly present the consolidated financial condition
and results of operations of the Company and its Subsidiaries, in
accordance with generally accepted accounting principles, as at
the end of (and for) such fiscal year, and a certificate of such
accountants stating that, in making the examination necessary for
their opinion, they obtained no knowledge, except as specifically
stated, of any Default.
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any,
which the Company shall have filed with the Securities and
Exchange Commission (or any governmental agency substituted
therefor) or any national securities exchange.
(d) promptly upon the mailing thereof to the shareholders
of the Company generally, copies of all financial statements,
reports and proxy statements so mailed.
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(e) as soon as possible, and in any event within ten days
after the Company knows or has reason to know that any of the
events or conditions specified below with respect to any Plan or
Multiemployer Plan of the Company have occurred or exist, a
statement signed by a senior financial officer of the Company
setting forth details respecting such event or condition and the
action, if any, which the Company or any ERISA Affiliate proposes
to take with respect thereto (and a copy of any report or notice
required to be filed with or given to PBGC by the Company or such
ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section
4043(b) of ERISA and the regulations issued thereunder, with
respect to a Plan, as to which PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it
be notified within 30 days of the occurrence of such event
(PROVIDED that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA
shall be a reportable event regardless of the issuance of
any waivers in accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a
notice of intent to terminate any Plan or the termination of
any Plan if at the date of such filing or termination the
fair market value of the assets of such Plan, as determined
by the Plan's independent actuaries, is exceeded by the
present value as determined by such actuaries as of such
date, of benefit commitments under such Plan by more than
$5,000,000 (including any prior terminations subject to this
provision);
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan of the
Company, or the receipt by the Company or any ERISA
Affiliate of a notice from a Multiemployer Plan that such
action has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company
or any ERISA Affiliate under Section 4201 or 4204 of ERISA
from a Multiemployer Plan causing any withdrawal liability
in excess of $2,500,000 (including any prior withdrawals
subject to this provision), or the receipt by the Company or
any ERISA Affiliate of notice from a Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA; and
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(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Company or any ERISA
Affiliate to enforce Section 515 of ERISA, which proceeding
is not dismissed within 30 days.
(f) promptly after the Company knows or has reason to know
that any Default has occurred, a notice of such Default,
describing the same in reasonable detail.
(g) from time to time such other information regarding the
business, affairs or financial condition of the Company or any of
its Subsidiaries (including, without limitation, any Plan or
Multiemployer Plan and any reports or other information required
to be filed under ERISA) as any Lender or the Administrative
Agent may reasonably request.
The Company will furnish to each Lender, at the time it furnishes each
set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of a senior financial officer of the Company (i) to the
effect that no Default has occurred and is continuing (or, if any
Default has occurred and is continuing, describing the same in
reasonable detail) and (ii) setting forth in reasonable detail the
computations necessary to determine whether the Company is in
compliance with Sections 8.06, 8.07(a)(vi), 8.08(xiii) and 8.10 as of
the end of the respective fiscal quarter or fiscal year.
8.02 LITIGATION. The Company shall promptly give to each
Lender notice of all legal or arbitral proceedings, and of all
proceedings before any governmental or regulatory authority or agency,
instituted, or (to the knowledge of the Company) threatened, against
the Company or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
8.03 CORPORATE EXISTENCE, ETC. The Company shall, and
shall cause each of its Significant Subsidiaries to: preserve and
maintain its corporate existence and all its material rights,
privileges and franchises (except as otherwise expressly permitted
under Section 8.07); comply with the requirements of all applicable
laws, rules, regulations and orders of governmental or regulatory
authorities if failure to comply with such requirements would have a
Material Adverse Effect; pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or
profits or on any of its property prior to the date on which penalties
attach thereto, except for any such tax, assessment, charge or levy
the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained;
maintain all its properties used or useful in its business in good
working order and condition, ordinary wear and tear excepted; and
permit representatives of any Lender or the Administrative Agent,
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during normal business hours, to examine, copy and make extracts from
its books and records, to inspect its properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by such Lender or the Administrative Agent (as the case may
be).
8.04 INSURANCE. The Company shall, and shall cause each of
its Subsidiaries to, keep insured by financially sound and reputable
insurers all property of a character usually insured by corporations
engaged in the same or similar business similarly situated against
loss or damage of the kinds and in the amounts customarily insured
against by such corporations and carry such other insurance as is
usually carried by such corporations.
8.05 USE OF PROCEEDS. The proceeds of the Credit
Extensions hereunder will be used solely for general corporate
purposes, including (without limitation) commercial paper back-up and
acquisitions (each of which uses shall be in compliance with all
applicable legal and regulatory requirements, including, without
limitation, Regulations U and X of the Board of Governors of the
Federal Reserve System and the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder). The Company will not permit more than 25% of
the value (as determined by any reasonable method) of its assets, nor
more than 25% of the value (as determined by any reasonable method) of
the assets of the Company and its Subsidiaries, to be represented by
margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System).
8.06 INDEBTEDNESS. The Company will not, nor will it
permit any of its Subsidiaries to, incur, assume or suffer to exist
obligations in respect of standby and performance letters of credit in
an aggregate amount exceeding 5% of Total Consolidated Assets at any
one time outstanding. The Company will not permit any of its
Subsidiaries to create, issue, incur or assume, or suffer to exist,
any Indebtedness, except: (i) Indebtedness existing on the date
hereof, but not any renewals, extensions or refinancings of the same;
(ii) Indebtedness owing to the Company; (iii) Indebtedness of any
Person that becomes a Subsidiary of the Company after the date hereof
so long as such Indebtedness exists at the time such Person becomes
such a Subsidiary and was not incurred in anticipation thereof; (iv)
Capital Lease Obligations in an aggregate amount not to exceed an
amount equal to 5% of Total Consolidated Assets at any one time
outstanding; (v) Indebtedness in respect of Committed Loans under this
Agreement; and (vi) additional Indebtedness in an aggregate amount not
to exceed an amount equal to 15% of Total Consolidated Assets at any
one time outstanding.
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8.07 FUNDAMENTAL CHANGES.
(a) The Company will not, and will not permit any of its
Subsidiaries to, be a party to any merger or consolidation, and the
Company will not, and will not permit any of its Subsidiaries or
operating divisions (whether now owned or existing or hereafter
acquired or designated) to, (x) sell, assign, lease or otherwise
dispose of all or substantially all of its Property whether now owned
or hereafter acquired or (y) sell, assign or otherwise dispose of any
capital stock of any such Subsidiary, or permit any such Subsidiary to
issue any capital stock, to any Person other than the Company or any
of its Wholly-Owned Subsidiaries if, after giving effect thereto, the
Company does not own, directly or indirectly, a majority of the
capital stock of such Subsidiary ("Controlling Stock Disposition");
except that, so long as both before and after giving effect thereto no
Default shall have occurred and be continuing:
(i) the Company or any Subsidiary of the Company may be a
party to any merger or consolidation if it shall be the surviving
corporation;
(ii) any such Subsidiary may be a party to any merger or
consolidation with another such Subsidiary (or with any Person
that becomes another such Subsidiary as a result of such merger
or consolidation);
(iii) any such Subsidiary may merge into, and any such
Subsidiary or operating division may transfer any Property to,
the Company;
(iv) any such Subsidiary or operating division may transfer
any Property to another such Subsidiary or operating division (or
to any Person that becomes as part of such transfer another such
Subsidiary or operating division);
(v) the Company, any such Subsidiary or operating division
may sell, assign, lease or otherwise dispose of any Non-Strategic
Property; and
(vi) the Company or any such Subsidiary or operating
division may make sales, assignments and other dispositions of
Property (including Controlling Stock Dispositions) and any such
Subsidiary may become a party to a merger or consolidation (each
such sale, assignment, disposition, Controlling Stock
Disposition, merger or consolidation, other than those described
in clauses (i) through (v), a "Disposition") if the Property that
was the subject of any such Disposition, together with the
Property that was the subject of all Dispositions during the
Disposition Period for such Disposition, did not produce revenue
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that was greater in amount than an amount equal to 10% of the
revenue of the Company and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP)
for the twelve-month period ending on the Determination Date for
such Disposition (for which purpose, a Controlling Stock
Disposition with respect to any such Subsidiary shall be deemed
to be the disposition of Property of such Subsidiary that
produced all of the revenues of such Subsidiary).
(b) Notwithstanding anything in clauses (i) through (vi) of
Section 8.07(a) to the contrary:
(i) the Company will not, and will not permit any of its
Subsidiaries or operating divisions (whether now owned or
existing or hereafter acquired or designated) to, sell, lease,
assign, transfer or otherwise dispose of (whether in one
transaction or in a series of transactions) any of its Property
(whether now owned or hereafter acquired) if such sale,
assignment, lease or other disposition (whether in one
transaction or in a series of transactions) shall have a Material
Adverse Effect; and
(ii) no Wholly-Owned Subsidiary of the Company shall be a
party to any merger or consolidation with, or shall sell, lease,
assign, transfer or otherwise dispose of any substantial part of
its Property to, any Subsidiary of the Company that is not a
Wholly-Owned Subsidiary of the Company.
8.08 LIENS. The Company shall not, and shall not permit
any of its Subsidiaries to, create, assume or suffer to exist any Lien
upon any of its property or assets, now owned or hereafter acquired,
securing any Indebtedness or other obligation except: (i) Liens
outstanding on the date hereof and listed in Schedule II hereto; (ii)
Liens for taxes or other governmental charges not yet delinquent;
(iii) Liens in respect of Property acquired or constructed or improved
by the Company or any such Subsidiary after the date hereof which
Liens exist or are created at the time of acquisition or completion of
construction or improvement of such Property or within six months
thereafter to secure Indebtedness assumed or incurred to finance all
or any part of the purchase price or cost of construction or
improvement of such Property, but any such Lien shall cover only the
Property so acquired or constructed and any improvements thereto (and
any real property on which such Property is located); (iv) Liens on
Property of any corporation that becomes a Subsidiary of the Company
after the date hereof, PROVIDED that such Liens are in existence at
the time such corporation becomes a Subsidiary of the Company and were
not created in anticipation thereof; (v) Liens on Property acquired
after the date hereof, PROVIDED that such Liens were in existence at
the time such Property was acquired and were not created in
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anticipation thereof; (vi) Liens imposed by law, such as mechanics',
materialmen's, landlords', warehousemen's and carriers' Liens, and
other similar Liens, securing obligations incurred in the ordinary
course of business which are not past due for more than thirty days or
which are being contested in good faith by appropriate proceedings and
for which appropriate reserves have been established; (vii) Liens
under workmen's compensation, unemployment insurance, social security
or similar legislation; (viii) Liens, deposits, or pledges to secure
the performance of bids, tenders, contracts (other than contracts for
the payment of money), leases, public or statutory obligations,
surety, stay, appeal, indemnity, performance or other similar bonds,
or other similar obligations arising in the ordinary course of
business; (ix) judgment and other similar Liens arising in connection
with court proceedings, PROVIDED the execution or other enforcement of
such Liens is effectively stayed and the claims secured thereby are
being actively contested in good faith and by appropriate proceedings;
(x) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not materially interfere with
the occupation, use and enjoyment by the Company or any such
Subsidiary of the Property encumbered thereby in the normal course of
its business or materially impair the value of the Property subject
thereto; (xi) Liens securing obligations of any such Subsidiary to the
Company or another Subsidiary of the Company; (xii) Liens securing
obligations of the Company pursuant to Receivables Sale Agreements;
and (xiii) other Liens securing Indebtedness in an aggregate amount
which does not exceed 5% of Total Consolidated Assets.
8.09 LINES OF BUSINESSES. Neither the Company nor any of
its Subsidiaries shall engage to any significant extent in any line or
lines of business other than the lines of business in which they are
engaged on the date hereof and any other line or lines of business
directly related to the manufacture, distribution and/or sale of
consumer or industrial products (collectively, "Permitted
Activities"). Notwithstanding the foregoing, the Company and its
Subsidiaries may engage in other lines of business as a result of the
acquisition of any Person primarily engaged in Permitted Activities so
long as the Company uses its best efforts to come into compliance with
the first sentence of this Section 8.09 within a reasonable period of
time after such acquisition.
8.10 TOTAL INDEBTEDNESS TO TOTAL CAPITAL. The Company
shall not permit the ratio of Total Indebtedness to Total Capital at
any time to be greater than 0.65 to 1.
SECTION 9. EVENTS OF DEFAULT.
-----------------
If one or more of the following events (herein called
"Events of Default") shall occur and be continuing:
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(a) Any Borrower shall default in the payment when due of
any principal of or interest on any Loan or any other amount
payable by it hereunder; or
(b) The Company or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of
its other Indebtedness aggregating $25,000,000 or more; or any
event specified in any note, agreement, indenture or other
document evidencing or relating to any Indebtedness aggregating
$25,000,000 or more shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or
both) to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause,
such Indebtedness to become due prior to its stated maturity or
to permit termination of the commitment to lend pursuant to any
such instrument or agreement; or
(c) Any representation, warranty or certification made or
deemed made by the Company herein or in any Designation Letter or
by the Company in any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof or
thereof, shall prove to have been false or misleading as of the
time made or furnished in any material respect; or
(d) The Company shall default in the performance of any of
its obligations under Section 8.01(f) or 8.05 through 8.10; or
the Company shall default in the performance of any of its other
obligations in this Agreement and such default shall continue
unremedied for a period of 30 days after notice thereof to the
Company by the Administrative Agent or any Lender (through the
Administrative Agent); or
(e) The Company or any of its Significant Subsidiaries
shall admit in writing its inability to, or be generally unable
to, pay its debts as such debts become due; or
(f) The Company or any of its Significant Subsidiaries
shall (i) apply for or consent to the appointment of, or the
taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its
property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy
Code (as now or hereafter in effect), (iv) file a petition
seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or
composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any
petition filed against it in an involuntary case under the
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Bankruptcy Code, or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced against the
Company or any of its Significant Subsidiaries without its
application or consent, in any court of competent jurisdiction,
seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts, (ii)
the appointment of a trustee, receiver, custodian, liquidator or
the like of it or of all or any substantial part of its assets,
or (iii) similar relief in respect of it under any law relating
to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree
approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60 days; or an
order for relief against it shall be entered in an involuntary
case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money
in excess of $20,000,000 in the aggregate shall be rendered by a
court or courts against the Company and/or any of its
Subsidiaries and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 30 days from the date of
entry thereof and the Company or the relevant Subsidiary shall
not, within said period of 30 days, or such longer period during
which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during
such appeal; or
(i) An event or condition specified in Section 8.01(e)
shall occur or exist with respect to any Plan or Multiemployer
Plan of the Company and, as a result of such event or condition,
together with all other such events or conditions, the Company or
any ERISA Affiliate shall incur or in the opinion of the Majority
Lenders shall be reasonably likely to incur a liability to a
Plan, a Multiemployer Plan or PBGC (or any combination of the
foregoing) which is, in the determination of the Majority
Lenders, material in relation to the consolidated financial
position of the Company and its Subsidiaries (taken as a whole);
or
(j) During any period of 25 consecutive calendar months (i)
individuals who were directors of the Company on the first day of
such period and (ii) other individuals whose election or
nomination to the Board of Directors of the Company was approved
by at least a majority of the individuals referred to in clause
(i) above and (iii) other individuals whose election or
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nomination to the Board of Directors of the Company was approved
by at least a majority of the individuals referred to in clauses
(i) and (ii) above shall no longer constitute a majority of the
Board of Directors of the Company; or
(k) The Guarantee provided in Section 11, or any provisions
thereof, shall cease to be in full force and effect in all
material respects, or any guarantor thereunder or any Person
acting on behalf of such guarantor shall deny or disaffirm such
guarantor's obligations under such Guarantee or shall default in
the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to
such Guarantee;
THEREUPON: (i) in the case of an Event of Default (other than one
referred to in clause (f) or (g) of this Section 9 in respect of the
Company) (x) the Administrative Agent may and, upon request of the
Majority Lenders, shall, by notice to the Company, cancel the
Commitments and (y) the Administrative Agent may and, upon request of
Lenders holding at least 51% of the aggregate unpaid principal amount
of Loans then outstanding shall, by notice to the Company, declare the
principal amount of and the accrued interest on the Loans, and all
other amounts payable by the Company or any other Borrower hereunder
and under the Notes, to be forthwith due and payable, whereupon such
amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Company and each other Borrower; and
(ii) in the case of the occurrence of an Event of Default referred to
in clause (f) or (g) of this Section 9 in respect of the Company, the
Commitments shall be automatically cancelled and the principal amount
then outstanding of, and the accrued interest on, the Loans and all
other amounts payable by the Company or any other Borrower hereunder
and under the Notes shall become automatically immediately due and
payable without presentment, demand, protest or other formalities of
any kind, all of which are hereby expressly waived by the Company and
each other Borrower.
In addition, in the case of the occurrence of any event of
the type referred to in clause (f) or (g) of this Section 9 in respect
of any Designated Borrower, the principal amount then outstanding of,
and accrued interest on, the Loans and other amounts payable by such
Designated Borrower hereunder and under its Notes shall automatically
become immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby
expressly waived by such Designated Borrower and the Company.
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SECTION 10. THE ADMINISTRATIVE AGENT.
------------------------
10.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Lender
hereby irrevocably (but subject to Section 10.08) appoints and
authorizes the Administrative Agent to act as its agent hereunder with
such powers as are specifically delegated to the Administrative Agent
by the terms of this Agreement together with such other powers as are
reasonably incidental thereto. The Administrative Agent (which term
as used in this sentence and in Section 10.05 and the first sentence
of Section 10.06 shall include reference to its Affiliates and its own
and its affiliates' officers, directors, employees and agents): (a)
shall have no duties or responsibilities except those expressly set
forth in this Agreement and shall not by reason of this Agreement be a
trustee for any Lender; (b) shall not be responsible to the Lenders
for any recitals, statements, representations or warranties contained
in this Agreement or in any certificate or other document referred to
or provided for in, or received by any of them under, this Agreement
or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement, any Note or any other document
referred to or provided for herein or for any failure by the Company
or any other Person to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder; and (d) shall not be
responsible for any action taken or omitted to be taken by it
hereunder or under any other document or instrument referred to or
provided for herein or in connection herewith, except for its own
gross negligence or willful misconduct. The Administrative Agent may
employ agents and attorneys-in-fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
10.02 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telex,
telegram or cable) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement, the
Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with
instructions signed by the Majority Lenders (or such other number of
Lenders as is expressly required hereby), and such instructions of the
Majority Lenders (or such other number of Lenders) and any action
taken or failure to act pursuant thereto shall be binding on all the
Lenders.
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10.03 DEFAULTS. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or the Company
specifying such Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a
notice of the occurrence of a Default, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative Agent
shall (subject to Section 10.07) take such action with respect to such
Default as shall be directed by the Majority Lenders, PROVIDED that,
unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the
Lenders.
10.04 RIGHTS AS A LENDER. With respect to its Commitment
and the Loans made by it, Chase (and any successor acting as
Administrative Agent), in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not acting as the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Administrative Agent in its
individual capacity. Chase (and any successor acting as
Administrative Agent) and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business
with the Company (and any of its Affiliates) as if it were not acting
as the Administrative Agent, and Chase and its Affiliates may accept
fees and other consideration from the Company for services in
connection with this Agreement or otherwise without having to account
for the same to the Lenders.
10.05 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section
12.03, but without limiting the obligations of the Company under said
Section 12.03), ratably in accordance with their respective
Commitments, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement or any other
documents contemplated by or referred to herein or the transactions
contemplated hereby (including, without limitation, the costs and
expenses which the Company is obligated to pay under Section 12.03 but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms
hereof, or of any such other documents, PROVIDED that no Lender shall
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be liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the party to be indemnified.
10.06 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER
LENDERS. Each Lender agrees that it has, independently and without
reliance on the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its
own credit analysis of the Company and its Subsidiaries and decision
to enter into this Agreement and that it will, independently and
without reliance upon the Administrative Agent or any other Lender,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement. The
Administrative Agent shall not be required to keep itself informed as
to the performance or observance by any Obligor of this Agreement or
any other document referred to or provided for herein or to inspect
the properties or books of the Company or any Subsidiary of the
Company. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit
or other information concerning the affairs, financial condition or
business of the Company or any Subsidiary of the Company (or any of
their affiliates) which may come into the possession of the
Administrative Agent or any of its Affiliates.
10.07 FAILURE TO ACT. Except for action expressly required
of the Administrative Agent hereunder the Administrative Agent shall
in all cases be fully justified in failing or refusing to act
hereunder unless it shall be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such
action.
10.08 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may
resign at any time by giving notice thereof to the Lenders and the
Company and the Administrative Agent may be removed at any time with
or without cause by the Majority Lenders. Upon any such resignation
or removal, the Majority Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Majority Lenders and shall have
accepted such appointment within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a bank with a combined
capital and surplus of at least $100,000,000 which has an office in
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New York, New York. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent,
such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder.
After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Section 10
shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the
Administrative Agent.
10.09 LEAD ARRANGER AND OTHER AGENTS. Anything herein to
the contrary notwithstanding, the Advisor, Lead Arranger and Book
Manager, the Syndication Agent and the Documentation Agent listed on
the cover page shall not have any duties or responsibilities under
this Agreement, except in their capacity, if any, as Lenders.
SECTION 11. GUARANTEE.
---------
11.01 GUARANTEE. The Company hereby guarantees to each
Lender and the Administrative Agent and their respective successors
and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration, by optional prepayment or otherwise) of the
principal of and interest on the Loans made by the Lenders to, and the
Notes held by each Lender of, any Designated Borrower and all other
amounts from time to time owing to the Lenders or the Administrative
Agent by any Designated Borrower under this Agreement pursuant to its
Designation Letter and under the Notes, in each case strictly in
accordance with the terms thereof (such obligations being herein
collectively called the "Guaranteed Obligations"). The Company hereby
further agrees that if any Designated Borrower shall fail to pay in
full when due (whether at stated maturity, by acceleration, by
optional prepayment or otherwise) any of the Guaranteed Obligations,
the Company will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment
or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such
extension or renewal.
11.02 OBLIGATIONS UNCONDITIONAL. The obligations of the
Company hereunder are unconditional irrespective of (a) the value,
genuineness, validity, regularity or enforceability of any of the
Guaranteed Obligations, (b) any modification, amendment or variation
in or addition to the terms of any of the Guaranteed Obligations or
any covenants in respect thereof or any security therefor, (c) any
extension of time for performance or waiver of performance of any
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covenant of any Designated Borrower or any failure or omission to
enforce any right with regard to any of the Guaranteed Obligations,
(d) any exchange, surrender, release of any other guaranty of or
security for any of the Guaranteed Obligations, or (e) any other
circumstance with regard to any of the Guaranteed Obligations which
may or might in any manner constitute a legal or equitable discharge
or defense of a surety or guarantor, it being the intent hereof that
the obligations of the Company hereunder shall be absolute and
unconditional under any and all circumstances.
The Company hereby expressly waives diligence, presentment,
demand, protest, and all notices whatsoever with regard to any of the
Guaranteed Obligations and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed
against any Designated Borrower hereunder or under the Designation
Letter of such Designated Borrower or any Note of such Designated
Borrower or any other guarantor of or any security for any of the
Guaranteed Obligations.
11.03 REINSTATEMENT. The guarantee in this Section 11
shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Designated Borrower in
respect of the Guaranteed Obligations is rescinded or must be
otherwise restored by any holder(s) of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.
11.04 SUBROGATION. Until the termination of the
Commitments and the payment in full of the principal of and interest
on the Loans and all other amounts payable to the Administrative Agent
or any Lender hereunder, the Company hereby irrevocably waives all
rights of subrogation or contribution, whether arising by operation of
law (including, without limitation, any such right arising under the
Bankruptcy Code) or otherwise, by reason of any payment by it pursuant
to the provisions of this Section 11.
11.05 REMEDIES. The Company agrees that, as between the
Company on the one hand and the Lenders and the Administrative Agent
on the other hand, the obligations of any Designated Borrower
guaranteed under this Agreement may be declared to be forthwith due
and payable, or may be deemed automatically to have been accelerated,
as provided in Section 9, for purposes of Section 11.01
notwithstanding any stay, injunction or other prohibition (whether in
a bankruptcy proceeding affecting such Designated Borrower or
otherwise) preventing such declaration as against such Designated
Borrower and that, in the event of such declaration or automatic
acceleration such obligations (whether or not due and payable by such
Designated Borrower) shall forthwith become due and payable by the
Company for purposes of said Section 11.01.
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11.06 CONTINUING GUARANTEE. The guarantee in this Section
11 is a continuing guarantee and shall apply to all Guaranteed
Obligations whenever arising.
SECTION 12. MISCELLANEOUS.
-------------
12.01 WAIVER. No failure on the part of the Administrative
Agent or any Lender to exercise and no delay in exercising, and no
course of dealing with respect to, any right, power or privilege under
this Agreement, any Designation Letter or any Note shall operate as a
waiver thereof, nor shall any single or partial exercise of any right,
power or privilege under this Agreement, any Designation Letter or any
Note preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The remedies provided herein and
therein are cumulative and not exclusive of any remedies provided by
law.
12.02 NOTICES. All notices and other communications
provided for herein (including, without limitation, any modifications
of, or requests, demands, waivers or consents under, this Agreement)
shall be given or made by telex, telecopy, telegraph, cable or in
writing and telexed, telecopied, telegraphed, cabled, mailed or
delivered to the intended recipient at (i) in the case of the Company
or the Administrative Agent, the "Address for Notices" specified below
its name on the signature pages hereof and (ii) in the case of each
Lender, the address (or telecopy) set forth in its Administrative
Questionnaire; or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telex or
telecopier, delivered to the telegraph or cable office or personally
delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid. Each Designated Borrower hereby
agrees that each notice or other communication provided for herein may
be furnished to the Company or by the Company on its behalf in the
manner specified above and each Designated Borrower further agrees
that failure of the Company to deliver to such Designated Borrower any
notice furnished in accordance with this Section 12.02 shall not
affect the validity of such notice.
12.03 EXPENSES, ETC. The Company agrees to pay or
reimburse each of the Lenders and the Administrative Agent for paying:
(a) the reasonable fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, special New York counsel to the Administrative Agent, in
connection with (i) the preparation, execution and delivery of this
Agreement, the Designation Letters and the Notes and the making of the
Loans hereunder and (ii) any amendment, modification or waiver
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(whether or not such amendment, modification or waiver shall become
effective) of any of the terms of this Agreement or any of the Notes;
(b) all reasonable costs and expenses of the Lenders and the
Administrative Agent (including reasonable counsels' fees) in
connection with the enforcement of this Agreement, any Designation
Letter or any of the Notes; and (c) all transfer, stamp, documentary
or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement, any
Designation Letter, any of the Notes or any other document referred to
herein.
The Company hereby agrees to indemnify the Administrative
Agent and each Lender and their respective directors, officers,
employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims, damages, costs, expenses, taxes
or penalties incurred by any of them arising out of, by reason of or
as a consequence of (i) any representation or warranty made or deemed
to be made by the Company in Section 7 or in any Designation Letter
proving to have been false or misleading as of the time made in any
material respect or (ii) any investigation or litigation or other
proceedings (including any threatened investigation or litigation or
other proceedings) relating to any actual or proposed use by the
Company or any Subsidiary of the Company of the proceeds of any of the
Loans, including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such
investigation or litigation or other proceedings (but excluding any
such losses, liabilities, claims, damages, costs, expenses, taxes or
penalties incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified).
12.04 AMENDMENTS, ETC. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may be
amended or modified only by an instrument in writing signed by the
Company, the Administrative Agent and the Majority Lenders, or by the
Company, and the Administrative Agent acting with the consent of the
Majority Lenders, and any provision of this Agreement may be waived by
the Majority Lenders or by the Administrative Agent acting with the
consent of the Majority Lenders; PROVIDED that no amendment,
modification or waiver shall, unless by an instrument signed by all of
the Lenders or by the Administrative Agent acting with the consent of
all of the Lenders: (i) increase or extend the term, or extend the
time or waive any requirement for the reduction or termination, of the
Commitments, (ii) extend the date fixed for the payment of any
principal of or interest on any Loan, (iii) reduce the amount of any
principal of any Loan or the rate at which interest or any fee is
payable hereunder, (iv) alter the terms of Section 11 or release the
Company from any of its obligations thereunder, (v) alter the terms of
this Section 12.04, (vi) amend the definition of the term "Majority
Lenders" or modify in any other manner the number or percentage of the
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Lenders required to make any determinations or waive any rights
hereunder or to modify any provision hereof, (vii) amend the
definition of the term "Alternative Currency" or (viii) waive any of
the conditions precedent set forth in Section 6; and PROVIDED;
further, that any amendment of Section 10, or which increases the
obligations or alters the rights of the Administrative Agent
hereunder, shall require the consent of the Administrative Agent.
12.05 ASSIGNMENTS AND PARTICIPATIONS.
(a) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of all of the
Lenders and the Administrative Agent.
(b) No Lender may assign all or any part of its Loans, its
Notes or its Commitment without the prior consent of the Company and
the Administrative Agent, which consents will not be unreasonably
withheld and, in the case of the Company, shall not be required if an
Event of Default referred to in clauses (a), (f) or (g) of Section 9
exists; PROVIDED that, (i) without the consent of the Company or the
Administrative Agent, any Lender may assign to any Lender Affiliate or
to another Lender all or (subject to the further clauses below) any
portion of its Commitment; (ii) any such partial assignment shall be
not less than $5,000,000 and in multiples of $1,000,000 in excess
thereof, unless the Company and the Administrative Agent otherwise
consent; and (iii) such assigning Lender shall also simultaneously
assign the same proportion of each of its Committed Loans then
outstanding. Upon written notice to the Company and the
Administrative Agent of an assignment permitted by the preceding
sentence (which notice shall identify the assignee, the amount of the
assigning Lender's Commitment and Loans assigned in detail reasonably
satisfactory to the Administrative Agent) and upon the effectiveness
of any assignment consented to by the Company (if required) and the
Administrative Agent, the assignee shall have, to the extent of such
assignment (unless otherwise provided in such assignment with the
consent of the Company and the Administrative Agent), the obligations,
rights and benefits of a Lender hereunder holding the Commitment and
Loans (or portions thereof) assigned to it (in addition to the
Commitment and Loans, if any, theretofore held by such assignee) and
the assigning Lender shall, to the extent of any such Commitment
assignment, be released from its Commitment (or portions thereof) so
assigned. Upon the effectiveness of any assignment referred to in
this Section 12.05(b), the assigning Lender or the assignee Lender
shall pay to the Administrative Agent a transfer fee in an amount
equal to $3,500.
(c) A Lender may sell or agree to sell to one or more other
Persons a participation in all or any part of its Commitment or its
Loans, in which event each such participant shall be entitled to the
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rights and benefits of the provisions of Section 8.01(g) with respect
to its participation as if (and the Company shall be directly
obligated to such participant under such provisions as if) such
participant were a "Lender" for purposes of said Section, but shall
not have any other rights or benefits under this Agreement or such
Lender's Notes (the participant's rights against such Lender in
respect of such participation to be those set forth in the agreement
(the "Participation Agreement") executed by such Lender in favor of
the participant). All amounts payable by the Company to any Lender
under Section 5 shall be determined as if such Lender had not sold or
agreed to sell any participations and as if such Lender were funding
all of its Loans in the same way that it is funding the portion of its
Loans in which no participations have been sold. In no event shall a
Lender that sells a participation be obligated to the participant
under the Participation Agreement to take or refrain from taking any
action hereunder or under such Lender's Notes except that such Lender
may agree in the Participation Agreement that it will not, without the
consent of the participant, agree to (i) the increase, or the
extension of the term, or the extension of the time or waiver of any
requirement for the reduction or termination, of such Lender's
Commitment, (ii) the extension of any date fixed for the payment of
principal of or interest on any participated Loan or any portion of
any fees payable to the participant, (iii) the reduction of any
payment of principal of any participated Loan, (iv) the reduction of
the rate at which either interest or (if the participant is entitled
to any part thereof) fees are payable hereunder to a level below the
rate at which the participant is entitled to receive interest or fees
(as the case may be) in respect of such participation or (v) any
modification, supplement or waiver hereof or of any of the other
Credit Documents to the extent that the same, under the terms hereof
or thereof, requires the consent of each Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement and
its Notes (if any) to secure obligations of such Lender, including any
such pledge or assignment to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or assignment of a security
interest; PROVIDED that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder
or substitute any such assignee for such Lender as a party hereto.
(e) A Lender may furnish any information concerning the
Company or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants).
12.06 SURVIVAL. The obligations of any Borrower under
Sections 5.01, 5.05 and 5.06, the obligations of the Lenders under
Section 10.05 and the obligations of the Company under Section 12.03
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shall survive the repayment of the Loans and the termination of the
Commitments. In addition, each representation and warranty made, or
deemed to be made, by a notice of borrowing of Loans hereunder shall
survive the making of such Loans, and no Lender shall be deemed to
have waived, by reason of making any Loan, any Default or Event of
Default which may arise by reason of such representation or warranty
proving to have been false or misleading, notwithstanding that such
Lender or the Administrative Agent may have had notice or knowledge or
reason to believe that such representation or warranty was false or
misleading at the time such Loan was made.
12.07 CAPTIONS. Captions and section headings appearing
herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this
Agreement.
12.08 COUNTERPARTS; EFFECTIVENESS. This Agreement may be
executed in any number of counterparts, each of which shall be
identical and all of which, when taken together, shall constitute one
and the same instrument, and any of the parties hereto may execute
this Agreement by signing any such counterpart. Except as provided in
Section 6.01, this Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery
of an executed counterpart of a signature page to this Agreement by
telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
12.09 GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS;
WAIVER OF JURY TRIAL; ETC.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND ANY ACTION OR PROCEEDING TO
EXECUTE OR OTHERWISE ENFORCE ANY JUDGMENT OBTAINED IN CONNECTION
THEREWITH, MAY BE INSTITUTED IN THE SUPREME COURT OF THE STATE OF NEW
YORK, COUNTY OF NEW YORK OR IN THE U.S. DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND EACH OBLIGOR IRREVOCABLY AND
UNCONDITIONALLY SUBMITS GENERALLY (BUT NON-EXCLUSIVELY) TO THE
JURISDICTION OF EACH SUCH COURT. THE COMPANY IRREVOCABLY CONSENTS TO
THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES OF SUCH PROCESS TO THE COMPANY AT ITS ADDRESS
SET FORTH UNDERNEATH ITS SIGNATURE HERETO. EACH DESIGNATED BORROWER
HEREBY AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
BROUGHT IN NEW YORK MAY BE MADE UPON SUCH DESIGNATED BORROWER BY
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SERVICE UPON THE COMPANY AT THE "ADDRESS FOR NOTICES" SPECIFIED BELOW
ITS NAME ON THE SIGNATURE PAGES HEREOF AND EACH DESIGNATED BORROWER
HEREBY IRREVOCABLY APPOINTS THE COMPANY AS ITS AUTHORIZED AGENT
("PROCESS AGENT") TO ACCEPT, ON BEHALF OF ITSELF AND ITS PROPERTY,
SUCH SERVICE OF PROCESS IN NEW YORK. EACH OBLIGOR 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. EACH OBLIGOR IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT
IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH
OBLIGOR FURTHER AGREES THAT ANY SUCH ACTION OR PROCEEDING AGAINST THE
ADMINISTRATIVE AGENT AND/OR ANY OF THE LENDERS SHALL BE BROUGHT ONLY
IN THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK OR
IN THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY CONSENT TO THE
JURISDICTION OF SUCH COURTS FOR SUCH PURPOSE.
(b) EACH OF THE OBLIGORS, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
12.10 SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
12.11 JUDGMENT CURRENCY. This is an international loan
transaction in which the specification of Dollars or an Alternative
Currency, as the case may be (the "Specified Currency"), and any
payment in New York City or the country of the Specified Currency, as
the case may be (the "Specified Place"), is of the essence, and the
Specified Currency shall be the currency of account in all events
relating to Loans denominated in the Specified Currency. The payment
obligations of the Obligors under this Agreement and the Notes shall
not be discharged by an amount paid in another currency or in another
place, whether pursuant to a judgment or otherwise, to the extent that
the amount so paid on conversion to the Specified Currency and
transfer to the Specified Place under normal banking procedures does
not yield the amount of the Specified Currency due hereunder at the
Specified Place. If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in the Specified
Currency into another currency (the "Second Currency"), the rate of
exchange which shall be applied shall be that at which in accordance
with normal banking procedures the Administrative Agent could purchase
the Specified Currency with the Second Currency on the Business Day
next preceding that on which such judgment is rendered. The
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obligation of each Obligor in respect of any such sum due from it to
the Administrative Agent or any Lender hereunder (an "Entitled
Person") shall, notwithstanding the rate of exchange actually applied
in rendering such judgment, be discharged only to the extent that on
the Business Day following receipt by such Entitled Person of any sum
adjudged to be due hereunder or under the Notes in the Second Currency
such Entitled Person may in accordance with normal banking procedures
purchase and transfer to the Specified Place the Specified Currency
with the amount of the Second Currency so adjudged to be due; and each
Obligor hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify such Entitled Person against, and to pay
such Entitled Person on demand in the Specified Currency, any
difference between the sum originally due to such Entitled Person in
the Specified Currency and the amount of the Specified Currency so
purchased and transferred.
12.12 EUROPEAN MONETARY UNION. (a) If, as a result of the
implementation of European monetary union, (i) any National Currency
ceases to be lawful currency of the nation issuing the same and is
replaced by the Euro, or (ii) any National Currency and the Euro are
at the same time recognized by any governmental authority of the
nation issuing such National Currency as lawful currency of such
nation and the Administrative Agent or the Majority Lenders shall so
request in a notice delivered to the Company, then any amount payable
hereunder by any party hereto in such National Currency shall instead
be payable in the Euro and the amount so payable shall be determined
by translating the amount payable in such National Currency to the
Euro at the exchange rate recognized by the European Central Bank for
the purpose of implementing European monetary union. Prior to the
occurrence of the event or events described in clause (i) or (ii) of
the preceding sentence, each amount payable hereunder in any National
Currency will, except as otherwise provided herein, continue to be
payable only in that Currency.
(b) The Company agrees, at the request of any Lender, to
compensate such Lender for any loss, cost, expense or reduction in
return that such Lender shall reasonably determine shall be incurred
or sustained by such Lender as a result of the implementation of
European monetary union and that would not have been incurred or
sustained but for the transactions provided for herein. A certificate
of a Lender setting forth such Lender's determination of the amount or
amounts necessary to compensate such Lender shall be delivered to the
Company and shall be conclusive absent manifest error so long as such
determination is made on a reasonable basis. The Company shall pay
such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
▇▇▇▇▇▇ RUBBERMAID INC.
By /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President -- Treasurer
Address for Notices:
▇▇▇▇▇▇ Rubbermaid Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇▇▇▇▇
Vice President-Treasurer
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
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THE ADMINISTRATIVE AGENT
------------------------
THE CHASE MANHATTAN BANK,
as Administrative Agent
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address for Notices:
The Chase Manhattan Bank
Loan and Agency Services Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Agreement
----------------
-69-
LENDERS
-------
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Credit Agreement
----------------
-70-
BANK ONE, NA
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Credit Agreement
----------------
-▇▇-
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Manager
Credit Agreement
----------------
-▇▇-
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Credit Agreement
----------------
-73-
BARCLAYS BANK PLC
By /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Credit Agreement
----------------
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
AND GRAND CAYMAN BRANCHES
By /s/ ▇▇▇▇ Monsow
-------------------------------------
Name: ▇▇▇▇ Monsow
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Treasurer
Credit Agreement
----------------
-75-
DANSKE BANK A/S,
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Credit Agreement
----------------
-76-
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Credit Agreement
----------------
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH
By /s/ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signature
Credit Agreement
----------------
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President - Corporate
Banking
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Global Rel. Manager -
Corporate Banking
Credit Agreement
----------------
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇, LTD.,
CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
Credit Agreement
----------------
-80-
BNP PARIBAS,
By /s/ Jo ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: Jo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Senior Vice President
Credit Agreement
----------------
-81-
ING BANK N.V.
By /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
Credit Agreement
----------------
-82-
THE SANWA BANK, LIMITED
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Credit Agreement
----------------
-83-
BANCA DI ROMA - CHICAGO BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ Enrico Verdoscia
-------------------------------------
Name: Enrico Verdoscia
Title: Sr. Vice Pres. & Branch Mgr.
Credit Agreement
----------------
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Credit Agreement
----------------
-85-
THE DAI-ICHI KANGYO BANK, LTD.
By /s/ Nobuyasu Fukatsu
-------------------------------------
Name: Nobuyasu Fukatsu
Title: General Manager
Credit Agreement
----------------
-86-
FIRSTAR BANK, NA
By /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Credit Agreement
----------------
-87-
▇▇▇▇▇▇ BANK PLC
By /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇. ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Credit Agreement
----------------
-88-
WACHOVIA BANK, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Credit Agreement
----------------
Annex I
Commitments
-----------
Lender Commitment
------ ----------
The Chase Manhattan Bank $50,000,000
Bank One, NA 50,000,000
Royal Bank of Canada 50,000,000
Bank of America, N.A. 50,000,000
Barclays Bank PLC 50,000,000
Commerzbank AG, New York and Grand Cayman Branches 50,000,000
Danske Bank A/S, New York Branch 50,000,000
▇▇▇▇▇▇ Guaranty Trust Company of New York 50,000,000
Banca Commerciale Italiana, New York Branch 30,000,000
Banco Bilbao Vizcaya Argentaria, New York 30,000,000
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch 30,000,000
Banque Nationale de Paris, Chicago Branch 30,000,000
ING Bank N.V. 30,000,000
The Sanwa Bank, Limited 30,000,000
Banca di Roma - Chicago Branch 20,000,000
The Bank of New York 20,000,000
The Dai-Ichi Kangyo Bank, Ltd. 20,000,000
Firstar Bank, NA 20,000,000
▇▇▇▇▇▇ Bank Plc 20,000,000
Wachovia Bank, N.A. 20,000,000
Total $700,000,000
============
Commitments
-----------
SCHEDULE I
LIST OF INDEBTEDNESS
List of Indebtedness
---------------------
SCHEDULE II
LIST OF CERTAIN LIENS
List of Indebtedness
---------------------
EXHIBIT A-1
[FORM OF OPINION OF SPECIAL ILLINOIS COUNSEL]
Form of Opinion of Special Illinois Counsel
-------------------------------------------
EXHIBIT A-2
[FORM OF OPINION OF ASSOCIATE GENERAL COUNSEL
TO ▇▇▇▇▇▇ RUBBERMAID INC.]
[______________], 2000
To the Lenders Party to the Credit Agreement
referred to Below and The Chase
Manhattan Bank, as Administrative Agent
Ladies and Gentlemen:
I am the Associate General Counsel of ▇▇▇▇▇▇ Rubbermaid Inc.
(the "Company") and am rendering the opinion contained herein in
connection with the 364-Day Credit Agreement (the "Credit Agreement"),
dated as of October 23, 2000, among the Company, the Lenders party
thereto and The Chase Manhattan Bank, as Administrative Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
In rendering the opinion expressed below, I have examined
the originals or copies of such corporate and stockholder records,
agreements and instruments of the Company, certificates of public
officials and of officers of the Company and such other documents and
papers as I have deemed necessary as a basis for the opinion
hereinafter expressed. In such examination, I have assumed the
genuineness of all signatures, the authenticity of documents submitted
to me as originals and the conformity to the original documents of all
documents submitted to me as copies. With respect to matters of fact,
I have relied upon representations and certificates of public
officials and of officers of the Company, including the
representations made by the Company in the Credit Agreement.
Based upon the foregoing and subject to the qualifications
set forth below, and having due regard for such legal considerations
as I have deemed relevant, I am of the opinion that, to my knowledge,
there are no legal or arbitral proceedings, and no proceedings by or
before any governmental or regulatory authority or agency, pending or
threatened against the Company or any of its Subsidiaries which could
be reasonably expected to have a Material Adverse Effect.
This opinion has been rendered solely to you for your use in
connection with the Credit Agreement. No other Person shall be
entitled to rely hereon without my prior written consent.
Very truly yours,
Form of Opinion of General Counsel
----------------------------------
EXHIBIT B
[FORM OF OPINION OF SPECIAL NEW YORK
COUNSEL TO THE ADMINISTRATIVE AGENT]
[______________], 2000
Each of the Lenders party to
the Credit Agreement referred
to below and The Chase Manhattan
Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank in connection with the 364-Day Credit Agreement dated
as of October 23, 2000 (the "Credit Agreement") among ▇▇▇▇▇▇
Rubbermaid Inc., a corporation organized under the laws of Delaware
(the "Company"), the Lenders party thereto and The Chase Manhattan
Bank, in its capacity as agent for said Lenders (the "Administrative
Agent"), providing for, among other things, the making of loans by the
Lenders in an aggregate principal amount not to exceed $700,000,000.
All capitalized terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement.
In rendering the opinions expressed below, we have examined:
(a) the Credit Agreement; and
(b) the Notes (if any) being executed and delivered to the
Lenders on the Effective Date (herein, the "Notes")
The Credit Agreement and the Notes (if any) are collectively referred
to as the "Credit Documents".
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with
authentic original documents of all documents submitted to us as
copies. When relevant facts were not independently established, we
have relied upon representations made in the Credit Documents.
In rendering the opinions expressed below, we have assumed,
with respect to the Credit Documents, that:
Form of Opinion of Special New York Counsel
to the Administrative Agent
-------------------------------------------
-2-
(i) the Credit Documents have been duly authorized by, have
been duly executed and delivered by, and (except to the
extent set forth below, as to the Company) constitute
legal, valid, binding and enforceable obligations of,
all of the parties to such documents;
(ii) all signatories to the Credit Documents have been duly
authorized; and
(iii) all of the parties to the Credit Documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver and
perform the Credit Documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered
such questions of law as we have deemed necessary as a basis for the
opinions expressed below, we are of the opinion that each Credit
Document (assuming, in the case of the Notes of the Company, execution
and delivery thereof for value) constitutes the legal, valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally and except as the
enforceability of the Credit Documents is subject to the application
of general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a)
the possible unavailability of specific performance, injunctive relief
or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments
and qualifications:
A. The enforceability of Section 12.03 of the Credit
Agreement may be limited by laws limiting the enforceability of
provisions exculpating or exempting a party, or requiring
indemnification of a party for, liability for its own action or
inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
B. The enforceability of provisions in the Credit
Documents to the effect that terms may not be waived or modified
except in writing may be limited under certain circumstances.
Form of Opinion of Special New York Counsel
to the Administrative Agent
-------------------------------------------
-3-
C. We express no opinion as to (i) the effect of the laws
of any jurisdiction in which any Lender is located (other than the
State of New York) that limit the interest, fees or other charges such
Lender may impose, (ii) the third sentence of Section 4.05(b) of the
Credit Agreement, (iii) Section 12.11 of the Credit Agreement, (iv)
the second sentence of Section 12.09(a) of the Credit Agreement,
insofar as such sentence relates to the subject matter jurisdiction of
the United States District Court for the Southern District of New York
to adjudicate any controversy related to the Credit Documents and (v)
the waiver of inconvenient forum set forth in Section 12.09(a) of the
Credit Agreement with respect to proceedings in the United States
District Court for the Southern District of New York.
D. We point out with reference to obligations stated to be
payable in an Alternative Currency that (a) a New York statute
provides that a judgment rendered by a court of the State of New York
in respect of an obligation denominated in a currency other than
Dollars would be rendered in such other currency and would be
converted into Dollars at the rate of exchange prevailing on the date
of entry of the judgment and (b) a judgment rendered by a Federal
court sitting in the State of New York in respect of an obligation
denominated in a currency other than Dollars may be expressed in
Dollars, but we express no opinion as to the rate of exchange such
Federal court would apply.
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America and the law of the State
of New York, and we do not express any opinion as to the laws of any
other jurisdiction.
This opinion letter is, pursuant to Section 6.01(d) of the
Credit Agreement, provided to you by us in our capacity as your
special New York counsel and may not be relied upon by any Person for
any purpose other than in connection with the transactions
contemplated by the Credit Agreement without, in each instance, our
prior written consent.
Very truly yours,
WJM/RJW
Form of Opinion of Special New York Counsel
to the Administrative Agent
-------------------------------------------
EXHIBIT C
[FORM OF COMPETITIVE BID REQUEST]
COMPETITIVE BID REQUEST
[______________, 20__]
The Chase Manhattan Bank,
as Administrative Agent
Loan and Agency Services Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as
of October 23, 2000 (as amended, supplemented and otherwise modified
and in effect from time to time, the "Credit Agreement"), among ▇▇▇▇▇▇
Rubbermaid Inc., a Delaware corporation, the Lenders party thereto and
The Chase Manhattan Bank, as Administrative Agent. Terms used but not
defined herein have the respective meanings given to such terms under
the Credit Agreement. This Competitive Bid Request is being delivered
to the Administrative Agent pursuant to Section 2.03(b) of the Credit
Agreement.
The undersigned hereby requests that the Lenders submit, as
provided in Section 2.03(c) of the Credit Agreement, Competitive Bids
for the proposed Competitive Borrowing(s) described below:
Borrowing Interest
Borrower Date Currency Amount* Type** Period***
-------- --------- -------- ------- ------ ---------
__________________
* Each amount must be per Section 2.03(c)(ii) or an integral
multiple of $1,000,000 or the Foreign Currency Equivalent therof.
** Insert either "Margin" (in the case of Competitive LIBOR Loans)
or "Rate" (in the case of Set Rate Loans).
*** 1, 2, 3 or 6 months (in the case of a Competitive LIBOR Loan) or
a period of up to 180 days after the making of the Loan the last
day of which is a Business Day (in the case of a Set Rate Loan).
Form of Competitive Bid Request
-------------------------------
-2-
Please notify, as provided in Section 2.03(b) of the Credit
Agreement, the Lenders of this Competitive Bid Request.
Very truly yours,
▇▇▇▇▇▇ RUBBERMAID INC.
By __________________________
Name:
Title:
Form of Competitive Bid Request
-------------------------------
EXHIBIT D
[FORM OF COMPETITIVE BID]
Competitive Bid
[______________, 20__]
The Chase Manhattan Bank,
as Administrative Agent
Loan and Agency Services Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as
of October 23, 2000 (as amended, supplemented and otherwise modified
and in effect from time to time, the "Credit Agreement"), among ▇▇▇▇▇▇
Rubbermaid Inc., a Delaware corporation, the Lenders party thereto and
The Chase Manhattan Bank, as Administrative Agent. Terms used but not
defined herein have the respective meanings given to such terms under
the Credit Agreement. This Competitive Bid is being delivered to the
Administrative Agent pursuant to Section 2.03(c) of the Credit
Agreement.
In response to the Competitive Bid Request of the Company
dated [_______, 200_], the undersigned hereby submits, as provided in
Section 2.03(c) of the Credit Agreement, Competitive Bid(s) for the
proposed Competitive Borrowing(s) described below:
Borrowing Interest
Borrower Date Currency Amount* Type** Period*** Rate****
-------- -------- -------- ------- ------ --------- --------
__________________
* Each amount must be per Section 2.03(c)(ii) or an integral
multiple of $1,000,000 or the Foreign Currency Equivalent
thereof.
** Insert either "Margin" (in the case of Competitive LIBOR Loans)
or "Rate" (in the case of Set Rate Loans).
*** 1, 2, 3 or 6 months (in the case of a Competitive LIBOR Loan) or
a period of up to 180 days after the making of the Loan the last
day of which is a Business Day (in the case of a Set Rate Loan).
Form of Competitive Bid
-----------------------
-2-
**** For a Competitive LIBOR Loan, specify margin over or under the
LIBO Rate determined for the applicable Interest Period as a
percentage (rounded to the nearest 1/10,000th of 1%) and whether
"PLUS" or "MINUS". For a Set Rate Loan, specify rate of interest
per annum (rounded to the nearest 1/10,000th of 1%).
PROVIDED that the Company may not accept offers that would result in
the undersigned making Competitive Loans pursuant hereto in excess of
$[____________] in the aggregate (the "Competitive Loan Limit").
Please notify, as provided in Section 2.03(d) of the Credit
Agreement, the Company of this Competitive Bid.
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in
the Credit Agreement, irrevocably obligate(s) us to make the
Competitive Loan(s) for which any offer(s) [is] [are] accepted, in
whole or in part (subject to the third sentence of Section 2.03(e) of
the Credit Agreement and any Competitive Loan Limit specified above).
Very truly yours,
[NAME OF LENDER]
By __________________________
Name:
Title:
Form of Competitive Bid
-----------------------
EXHIBIT E-1
[FORM OF DESIGNATION LETTER]
[Date]
To The Chase Manhattan Bank,
as Administrative Agent
Loan and Agency Services Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
We make reference to the 364-Day Credit Agreement (as
amended, supplemented and otherwise modified and in effect from time
to time, the "Credit Agreement"), dated as of October 23, 2000 among
▇▇▇▇▇▇ Rubbermaid Inc. (the "Company"), the lenders party thereto (the
"Lenders") and The Chase Manhattan Bank, as Administrative Agent (in
such capacity, the "Administrative Agent"). Terms defined in the
Credit Agreement are used herein as defined therein.
The Company hereby designates [_____________] (the
"Designated Borrower"), a Wholly-Owned Subsidiary of the Company and a
corporation duly incorporated under the laws of [STATE/COUNTRY], as a
Borrower in accordance with Section 2.04 of the Credit Agreement until
such designation is terminated in accordance with said Section 2.04,
entitled to borrow Competitive Loans.
The Designated Borrower hereby accepts the above designation
and hereby expressly and unconditionally accepts the obligations of a
Borrower under the Credit Agreement, adheres to the Credit Agreement
and agrees and confirms that, upon your execution and return to the
Company of the enclosed copy of this letter, it shall be a Borrower
for purposes of the Credit Agreement and agrees to be bound by and to
perform and comply with the terms and provisions of the Credit
Agreement applicable to it as if it had originally executed the Credit
Agreement. The Designated Borrower hereby authorizes and empowers the
Company to act as its representative and attorney-in-fact for the
purposes of signing documents and giving and receiving notices
(including notices of borrowing under Section 2 of the Credit
Agreement) and other communications in connection with the Credit
Agreement and the transactions contemplated thereby and for the
purposes of modifying or amending any provision of the Credit
Form of Designation Letter
--------------------------
-2-
Agreement and further agrees that the Administrative Agent and each
Lender may conclusively rely on the foregoing authorization.
The Company hereby represents and warrants to the
Administrative Agent and each Lender that, before and after giving
effect to this Designation Letter, (i) the representations and
warranties set forth in Section 7 of the Credit Agreement are true and
correct as if made on and as of the date hereof and as if each of the
representations and warranties in Sections 7.01, 7.04, 7.05 and 7.06
specifically included a reference to the Designated Borrower and (ii)
no Default has occurred and is continuing.
The Designated Borrower hereby agrees that this Designation
Letter, the Credit Agreement and the Notes shall be governed by, and
construed in accordance with, the law of the State of New York. The
Designated Borrower hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York
and of the Supreme Court of the State of New York, County of New York,
for the purposes of all legal proceedings arising out of or relating
to this Designation Letter, the Credit Agreement or the transactions
contemplated thereby. The Designated Borrower irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum. The
Designated Borrower further agrees that service of process in any such
action or proceeding brought in New York may be made upon it by
service upon the Company at the "Address for Notices" specified below
its name on the signature pages to the Credit Agreement and the
Designated Borrower hereby irrevocably appoints the Company as its
authorized agent ("Process Agent") to accept, on behalf of it and its
property such service of process in New York.
THE DESIGNATED BORROWER IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS DESIGNATION
LETTER, THE CREDIT AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Anything herein to the contrary notwithstanding, the Company
and the Designated Borrower hereby agree that unless and until the
Designated Borrower becomes an Approved Designated Borrower as
aforesaid, Committed Loans are not available to the Designated
Borrower under the Credit Agreement; and the Administrative Agent
hereby agrees on behalf of the Lenders that the provisions of Section
5.06(a) of the Credit Agreement are not applicable to the Designated
Borrower, unless and until the Designated Borrower becomes an Approved
Designated Borrower.
Form of Designation Letter
--------------------------
-3-
[The Company hereby requests that the Designated Borrower be
approved as an Approved Designated Borrower. Subject to the approval
of all of the Lenders (to be evidenced by your signing at the place
below indicated and returning to the Company the enclosed copy of this
letter) such Designated Borrower will become an Approved Designated
Borrower entitled to borrow both Committed Loans and Competitive
Loans.]
▇▇▇▇▇▇ RUBBERMAID INC.
By __________________________
Name:
Title:
[DESIGNATED BORROWER]
By ___________________________
Name:
Title:
[Insert Address]
[Consent and Agree to the aforesaid
Designated Borrower being an
Approved Designated Borrower:
THE CHASE MANHATTAN BANK
As Administrative Agent for and on behalf
of the Lenders
By ________________________
Name:
Title:
Date:_____________________]
Form of Designation Letter
--------------------------
EXHIBIT E-2
[FORM OF TERMINATION LETTER]
[Date]
To The Chase Manhattan Bank,
as Administrative Agent
Loan and Agency Services Group
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies and Gentlemen:
We make reference to the 364-Day Credit Agreement (as
amended, supplemented and otherwise modified and in effect from time
to time, the "Credit Agreement") dated as of October 23, 2000 among
▇▇▇▇▇▇ Rubbermaid Inc. (the "Company"), the Lenders party thereto (the
"Lenders") and The Chase Manhattan Bank as Administrative Agent (in
such capacity, the "Administrative Agent"). Terms defined in the
Credit Agreement are used herein as defined therein.
The Company hereby terminates the status as a Designated
Borrower of [______________], a corporation incorporated under the
laws of [STATE/COUNTY], in accordance with Section 2.04 of the Credit
Agreement, effective as of the date of receipt of this notice by the
Administrative Agent. The undersigned hereby represent and warrant
that all principal and interest on any Loan of the above-referenced
Designated Borrower and all other amounts payable by such Designated
Borrower pursuant to the Credit Agreement have been paid in full on or
prior to the date hereof. Notwithstanding the foregoing, this
Termination Letter shall not affect any obligation which by the terms
of the Credit Agreement survives termination thereof.
▇▇▇▇▇▇ RUBBERMAID INC.
By ___________________________
Name:
Title:
[INSERT NAME OF DESIGNATED
BORROWER]
By __________________________
Name:
Title:
Form of Termination Letter
--------------------------