EXHIBIT 10.10
$160,000,000
CREDIT AGREEMENT
dated as of
December 23, 1996
among
▇▇▇▇ CORPORATION,
PRIMEX TECHNOLOGIES, INC.
The Banks Parties Hereto
and
▇▇▇▇▇▇ Guaranty Trust Company of New York,
as Agent
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS 1
SECTION 1.1 Definitions 1
SECTION 1.2 Accounting Terms and Determinations 18
SECTION 1.3 Computation of Time Periods 18
SECTION 1.4 Types of Borrowings 18
ARTICLE 2
THE CREDITS 19
SECTION 2.1 Commitments to Lend 19
SECTION 2.2 Notice of Committed Borrowing 19
SECTION 2.3 Money Market Borrowings 20
SECTION 2.4 Notice to Banks; Funding of Loans 23
SECTION 2.5 Notes 24
SECTION 2.6 Maturity of Loans 25
SECTION 2.7 Interest Rates 25
SECTION 2.8 Fees 28
SECTION 2.9. Reduction and Extension of the
Commitments/Substitution of Banks 28
SECTION 2.10 Method of Electing Interest Rates 29
SECTION 2.11 Scheduled Termination of Commitments 31
SECTION 2.12 Optional Prepayments 31
SECTION 2.13 General Provisions as to Payments 32
SECTION 2.14 Funding Losses 32
SECTION 2.15 Computation of Interest and Fees 33
SECTION 2.16 Regulation D Compensation 33
ARTICLE 3
LETTERS OF CREDIT 33
SECTION 3.1 L/C Commitment 33
SECTION 3.2 Procedure for Issuance of Letter of
Credit 34
SECTION 3.3 Fees, Commissions and Other Charges 34
SECTION 3.4 L/C Participations 35
SECTION 3.5 Reimbursement Obligation of the
Borrower 36
SECTION 3.6 Obligations Absolute 36
SECTION 3.7 Letter of Credit Payments 37
SECTION 3.8 Applications 37
ARTICLE 4
CONDITIONS OF EXTENSIONS OF CREDIT 37
SECTION 4.1 Condition Precedent to Initial
Extension of Credit 37
SECTION 4.2 Conditions Precedent to Each
Extension of Credit. 39
ARTICLE 5
REPRESENTATIONS AND WARRANTIES 39
SECTION 5.1 Representations and Warranties of the
Borrower 39
SECTION 5.2 Representations and Warranties of ▇▇▇▇ 43
SECTION 5.3 Representations on Spinoff Date 43
ARTICLE 6
COVENANTS OF THE BORROWER 43
SECTION 6.1 Affirmative Covenants 43
SECTION 6.2 Negative Covenants 47
SECTION 6.3 ▇▇▇▇ Affirmative and Negative Covenants 51
ARTICLE 7
EVENTS OF DEFAULT 52
SECTION 7.1 Events of Default 52
ARTICLE 8
THE AGENT 54
SECTION 8.1 Appointment and Authorization 54
SECTION 8.2 Agent and Affiliates 54
SECTION 8.3 Action by Agent 54
SECTION 8.4 Consultation with Experts 55
SECTION 8.5 Liability of Agent 55
SECTION 8.6 Indemnification 55
SECTION 8.7 Credit Decision 55
SECTION 8.8 Successor Agent 56
SECTION 8.9 Agent's Fee 56
ARTICLE 9
CHANGE IN CIRCUMSTANCES 56
SECTION 9.1 Basis for Determining Interest Rate
Inadequate or Unfair 56
SECTION 9.2 Illegality 57
SECTION 9.3 Increased Cost and Reduced Return 57
SECTION 9.4 Taxes 59
SECTION 9.5 Base Rate Loans Substituted for
Affected Fixed Rate Loans 61
ARTICLE 10
MISCELLANEOUS 61
SECTION 10.1 Notices 61
SECTION 10.2 No Waivers 62
SECTION 10.3 Expenses; Indemnification 62
SECTION 10.4 Sharing of Set-Offs 62
SECTION 10.5 Amendments and Waivers 63
SECTION 10.6 Successors and Assigns 63
SECTION 10.7 Information 65
SECTION 10.8 Assignment to Primex; Release 65
SECTION 10.9 Collateral 66
SECTION 10.10 Governing Law; Submission to
Jurisdiction 66
SECTION 10.11 Counterparts; Integration;
Effectiveness 66
SECTION 10.12 WAIVER OF JURY TRIAL 66
EXHIBIT A - Note
EXHIBIT B - Money Market Quote Request
EXHIBIT C - Invitation for Money Market Quotes
EXHIBIT D - Money Market Quote
EXHIBIT E - Opinion of Counsel for the Borrower
EXHIBIT F - Assignment and Assumption Agreement
EXHIBIT G - Incorporated Provisions of ▇▇▇▇ Credit Agreement
SCHEDULES
PRICING SCHEDULE
Schedule 6.2(a) - Existing Liens
[THE EXHIBITS TO THIS CREDIT AGREEMENT HAVE BEEN OMITTED PURSUANT TO
ITEM 601(B)(2) OF REGULATION S-K. THE REGISTRANT HEREBY AGREES TO FURNISH
SUPPLEMENTALLY A COPY OF ANY OMITTED SCHEDULE OR EXHIBIT TO THE COMMISSION
UPON REQUEST.]
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of December 23, 1996, among ▇▇▇▇
CORPORATION, a Virginia corporation ("Olin"), PRIMEX TECHNOLOGIES, INC., a
Virginia corporation ("Primex"), the Banks from time to time parties hereto and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
W I T N E S S E T H:
WHEREAS, on the date hereof Primex is a Wholly Owned Subsidiary of
▇▇▇▇;
WHEREAS, pursuant to the Spinoff (as hereinafter defined) ▇▇▇▇ will
distribute the shares of common stock of Primex to the shareholders of Olin, as
a result of which Primex will become a separate, publicly-held corporation;
WHEREAS, on December 27, 1996, Olin, as the Borrower, will borrow
Loans hereunder; and
WHEREAS, prior to the Spinoff, (i) Primex will become the Borrower
hereunder, (ii) ▇▇▇▇ will assign to Primex, and Primex will assume, all rights
and obligations of ▇▇▇▇ hereunder and under the Notes and (iii) ▇▇▇▇ will be
released from its obligations hereunder and under the Notes;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. The following terms, as used herein, have the
following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.3.
"Adjusted CD Rate" has the meaning set forth in Section 2.7(b).
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Borrower) duly completed by such Bank.
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Borrower (a "Controlling Person") or
(ii) any Person (other than the Borrower or a Subsidiary) which is controlled by
or is under common control with a Controlling Person. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means ▇▇▇▇▇▇ Guaranty Trust Company of New York in its
capacity as agent for the Banks hereunder, and its successors in such capacity.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Application" means an application, in such form as the Issuing Bank
may reasonably specify from time to time, requesting the Issuing Bank to issue a
Letter of Credit.
"Assessment Rate" has the meaning set forth in Section 2.7(b).
"Assignee" has the meaning set forth in Section 10.6(c).
"Assuming Bank" has the meaning specified in Section 2.9(c).
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 10.6(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Committed Loan which bears interest at
the Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice
of Interest Rate Election or the provisions of Article 9 or (ii) an overdue
amount which was a Base Rate Loan immediately before it became overdue.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means (a) prior to the Spinoff, ▇▇▇▇ and (b) after the
Spinoff, Primex.
"Borrowing" has the meaning set forth in Section 1.4.
"CD Base Rate" has the meaning set forth in Section 2.7(b).
"CD Loan" means (i) a Committed Loan which bears interest at a CD Rate
pursuant to the applicable Notice of Committed Borrowing or Notice of Interest
Rate Election or (ii) an overdue amount which was a CD Loan immediately before
it became overdue.
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
"CD Rate" means a rate of interest determined pursuant to Section
2.7(b) on the basis of an Adjusted CD Rate.
"CD Reference Banks" means Bank of New York, Wachovia Bank of Georgia,
N.A. and ▇▇▇▇▇▇ Guaranty Trust Company of New York.
"Change of Control Date" shall mean (A) the first day after the
Spinoff Date on which any Person, or group of related Persons, has beneficial
ownership of more than 50% of the outstanding Voting Stock of the Borrower or
(B) the date immediately following the first date on which the members of the
Board of Directors of the Borrower (the "Board") at the commencement of any
period of 730 consecutive days (together with any other Directors whose
appointment or election by the Board or whose nomination for election by the
stockholders of the Borrower was approved by a vote of at least a majority of
the Directors then in office who either were Directors at the beginning of such
period or whose appointment or election or nomination for election, was
previously so approved) shall cease to constitute a majority of the Board at the
end of such period; provided that a Change of Control Date shall not be deemed
to have occurred under clause (A) hereof if (x) the Borrower shall have merged
or disposed of a portion of its assets in compliance with the requirements of
subsection 6.2(c) hereof within 10 days after the acquisition of such beneficial
ownership shall have occurred and (y) no person or group of related persons
shall have beneficial ownership of more than 50% of the outstanding Voting Stock
of the Borrower after such merger or disposition.
"Closing Date" means the date on or after the Effective Date on which
the conditions precedent specified in Section 4.1 have been satisfied.
"Commercial Letter of Credit" has the meaning given such term in
Section 3.1(a).
"Commitment" means, (i) with respect to each Bank listed on the
signature pages hereof, the amount set forth opposite its name on the signature
pages hereof and (ii) with respect to each Assignee that becomes a Bank pursuant
to Section 10.6(c), the amount of the Commitment thereby assumed by it, in each
case as such amount may be increased or reduced from time to time pursuant to
Section 10.6(c) or reduced from time to time pursuant to Section 2.9.
"Commitment Percentage" means, as to any Bank, the percentage which
the amount of such Bank's Commitment constitutes of the aggregate amount of the
Commitments of all the Banks.
"Committed Loan" means a loan made by a Bank pursuant to Section 2.1;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "Committed
Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"Consolidated Debt" means, at any date, the Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Consolidated EBIT" means, for any fiscal period, Consolidated Net
Income for such period plus, to the extent deducted in determining Consolidated
Net Income for such period, the aggregate amount of (i) Consolidated Interest
Expense and (ii) income tax expense.
"Consolidated EBITDA" means, for any fiscal period, Consolidated EBIT
for such period plus, to the extent deducted in determining Consolidated Net
Income for such period, the aggregate amount of depreciation, amortization and
other similar non-cash charges.
"Consolidated Interest Expense" means, for any fiscal period, the
interest expense of the Borrower and its Consolidated Subsidiaries determined on
a consolidated basis for such period; provided that for the 1997 fiscal year of
the Borrower, Consolidated Interest Expense shall be determined as follows: (i)
at the end of the first fiscal quarter of the 1997 fiscal year, the actual
interest expense of the Borrower and its Consolidated Subsidiaries for such
quarter shall be multiplied by 4, (ii) at the end of the second fiscal quarter
of the 1997 fiscal year, the actual interest expense of the Borrower and its
Consolidated Subsidiaries for the first two fiscal quarters of 1997 shall be
multiplied by 2, (iii) at the end of the third fiscal quarter of the 1997 fiscal
year, the actual interest expense of the Borrower at its Consolidated
Subsidiaries for the first three fiscal quarters of 1997 shall be multiplied by
4/3 and (iv) at the end of the fourth fiscal quarter of the 1997 fiscal year,
the actual interest expense of the Borrower and its Consolidated Subsidiaries
for the four fiscal quarters of the 1997 fiscal year shall be used..
"Consolidated Net Income (Loss)" means, for any fiscal period,
consolidated gross revenues of the Borrower and its Consolidated Subsidiaries
for such period, less all operating and non-operating expenses of the Borrower
and its Consolidated Subsidiaries for such period including charges of a proper
character (including current and deferred taxes on income, and current additions
to reserves), but not including in gross revenues any gains (net of expenses and
taxes applicable thereto) in excess of losses resulting from the sale,
conversion or other disposition of capital assets (i.e. assets other than
current assets and personal property disposed of in the ordinary course of
business), any gains resulting from the write-up of assets, all determined in
accordance with generally acceptable account principles, including the making of
appropriate deductions for minority interests (if any) in Subsidiaries, any
extraordinary items, and any non-recurring items recorded in 1996 prior to the
date of this Agreement.
"Consolidated Secured Debt" means all Debt of the Borrower and its
Consolidated Subsidiaries, on a consolidated basis, outstanding at the time of
any determination with respect thereto which is secured, directly or indirectly,
by any Lien upon any property or assets of the Borrower or any Subsidiary.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date.
"Consolidated Tangible Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries less
their consolidated Intangible Assets, all determined as of such date. For
purposes of this definition, "Intangible Assets" means the amount (to the extent
reflected in determining such consolidated stockholders' equity) of (i) all
write-ups (other than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within twelve months after
the acquisition of such business) subsequent to December 31, 1995 in the book
value of any asset owned by the Borrower or a Consolidated Subsidiary, (ii) all
investments in unconsolidated Subsidiaries and all equity investments in Persons
which are not Subsidiaries and (iii) all unamortized debt discount and expense,
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, anticipated future benefit (net) of tax loss carry-forwards,
copyrights, organization or developmental expenses and other intangible assets.
"Current Assets" means, on any date, all of the assets of the Borrower
and its Consolidated Subsidiaries which would, in accordance with GAAP, be
classified as current assets.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all non-contingent
obligations of such Person to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar instrument, (vi) all Debt
secured by a Lien on any asset of such Person, whether or not such Debt is
otherwise an obligation of such Person and (vii) all Debt of others Guaranteed
by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent; provided that any Bank may so designate
separate Domestic Lending Offices for its Base Rate Loans, on the one hand, and
its CD Loans, on the other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to refer to either or both
of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.7(b).
"Domestic Subsidiary" shall mean any Subsidiary organized under the
laws of any State of the United States of America, substantially all of the
assets of which are located, and substantially all of the business of which is
conducted, in the United States of America.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 10.11.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof, and having total assets in
excess of $1,000,000,000 and a combined capital and surplus of at least
$500,000,000; (ii) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, having total assets
in excess of $500,000,000, and having shareholders equity in excess of
$100,000,000; (iii) a commercial bank organized under the laws of any other
country which is a member of the OECD, or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
bank is acting through a branch or agency located in the United States; and (iv)
the central bank of any country which is a member of the OECD.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, 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, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person who, for purposes of Title IV of
ERISA, is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (i) the occurrence of a reportable event with
respect to a Plan, within the meaning of Section 4043 of ERISA, unless the 30-
day notice requirement with respect thereto has been waived by the PBGC; (ii)
the provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (iii) the cessation of operations at a facility in the circumstances
described in Section 4062(e) of ERISA; (iv) the withdrawal by the Borrower or an
ERISA Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (v) the
failure by the Borrower or any ERISA Affiliate to make a payment to a Plan
required under Section 302(f)(1) of ERISA, which Section imposes a lien for
failure to make required payments; (vi) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant to Section 307 of
ERISA; (vii) the receipt of notice from or the institution by the PBGC of
proceedings to terminate a Plan or to appoint a trustee to administer a Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
which would constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, a Plan; (viii) the receipt by
the Borrower or any ERISA Affiliate of any notice or communication from the PBGC
concerning the Spinoff; (ix) any attempt by the Borrower or any ERISA Affiliate
to waive the minimum funding standard under Section 412 of the Internal Revenue
Code in respect of any Plan; (x) the failure of the Borrower or any ERISA
Affiliate to make any contribution or payment to any Plan or Multiemployer Plan
or in respect of any Benefit Arrangement, which has resulted or could reasonably
be expected to result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code; (xi) any attempt by the
Borrower or any ERISA Affiliate to amend any Plan or Multiemployer Plan or
Benefit Arrangement, which has resulted or could reasonably be expected to
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Internal Revenue Code; (xii) the incurrence by the Borrower
or any ERISA Affiliate of any liability under Title IV of ERISA (other than a
liability to the PBGC for premiums under Section 4007 of ERISA); or (xiii) the
receipt by the Borrower or any ERISA Affiliate of any notice or communication
concerning complete or partial Withdrawal Liability of a Multiemployer Plan or
that any Multiemployer Plan is in reorganization, is insolvent or has been
terminated.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Bank as
it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Agent.
"Euro-Dollar Loan" means (i) a Committed Loan which bears interest at
a Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or (ii) an overdue amount which was a Euro-
Dollar Loan immediately before it became overdue.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.7(c) on the basis of the London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices of
Bank of New York, Wachovia Bank of Georgia, N.A. and ▇▇▇▇▇▇ Guaranty Trust
Company of New York.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
"Event of Default" has the meaning set forth in Section 7.1.
"Facility Fee Rate" means a rate per annum determined in accordance
with the Pricing Schedule.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, 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 Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to ▇▇▇▇▇▇ Guaranty Trust Company of New
York on such day on such transactions as determined by the Agent.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 9.1) or any combination of the foregoing.
"Foreign Subsidiary" shall mean any Subsidiary other than a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the holder of such Debt of the
payment thereof or to protect such holder against loss in respect thereof (in
whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Group of Loans" means at any time a group of Loans consisting of (i)
all Committed Loans which are Base Rate Loans at such time, (ii) all Euro-Dollar
Loans having the same Interest Period at such time or (iii) all CD Loans having
the same Interest Period at such time, provided that, if a Committed Loan of any
particular Bank is converted to or made as a Base Rate Loan pursuant to Article
9, such Loan shall be included in the same Group or Groups of Loans from time to
time as it would have been in if it had not been so converted or made.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics, in each case regulated by an
Environmental Law.
"Indemnitee" has the meaning set forth in Section 10.3(b).
"Information Statement" means the Form 10 Information Statement of
▇▇▇▇ and Primex as sent to the shareholders of ▇▇▇▇ in connection with the
Spinoff.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA,
as of the end of the Plan year immediately preceding the date on which a
representation or covenant is made, as applicable.
"Interest Period" means: (1) with respect to each Euro-Dollar Loan,
the period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in the applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter, as
the Borrower may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(2) with respect to each CD Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the applicable notice
provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Money Market LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such whole number of months thereafter as the Borrower may
elect in accordance with Section 2.3; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-
Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of
a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than seven
days) as the Borrower may elect in accordance with Section 2.3; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding Euro-
Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, guarantee, time deposit or otherwise
(but not including any demand deposit).
"Issuing Bank" means Bank of New York, in its capacity as issuer of
any Letter of Credit and any other Bank designated as "Issuing Bank" hereunder
by the Borrower with the consent of the Agent and such Bank.
"L/C Fee Payment Date" means the last day of each March, June,
September and December including the Termination Date.
"L/C Commitment" means $30,000,000.
"L/C Obligations" means, at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit which have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means, the collective reference to all the Banks
other than the Issuing Bank.
"Letters of Credit" has the meaning specified in Section 3.1(a).
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.3.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement).
"Loan" means a Domestic Loan, a Euro-Dollar Loan or a Money Market
Loan and "Loans" means Domestic Loans, Euro-Dollar Loans or Money Market Loans
or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in Section
2.7(c).
"Material Adverse Effect" means a material adverse effect on the
property, financial condition or operations of the Borrower and its
Subsidiaries, taken as a whole, or on the ability of the Borrower to perform its
obligations under this Agreement and the Notes.
"Money Market Absolute Rate" has the meaning set forth in Section
2.3(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Agent; provided that any Bank may from time to time by notice to the
Borrower and the Agent designate separate Money Market Lending Offices for its
Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money
Market Lending Office of such Bank shall be deemed to refer to either or both of
such offices, as the context may require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 9.1).
"Money Market Loan" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section
2.3(d)(ii)(C).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.3.
"▇▇▇▇▇▇ Letters" means the letters, dated October 18, 1996, between
▇▇▇▇▇▇ Guaranty Trust Company of New York, ▇.▇. ▇▇▇▇▇▇ Securities, Inc. and
▇▇▇▇.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions, such plan
being maintained pursuant to one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of the
Borrower or an ERISA Affiliate and at least one Person other than the Borrower
and its ERISA Affiliates or (ii) was so maintained and in respect of which the
Borrower or an ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.2) or a Notice of Money Market Borrowing (as defined in
Section 2.3(f)).
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.10.
"OECD" means the Organization for Economic Cooperation and
Development.
"Officer's Certificate" means a certificate signed in the name of the
Borrower by its President, one of its Vice Presidents, its Treasurer or its
Controller.
"▇▇▇▇" has the meaning specified in the preamble to this Agreement.
"▇▇▇▇ Credit Agreement" means the Credit Agreement, dated September
30, 1993, among ▇▇▇▇, Bank of Boston Connecticut, Citibank, N.A., Credit Suisse,
▇▇▇▇▇▇ Guaranty Trust Company of New York, The Boatmen's National Bank of St.
Louis and The Chase Manhattan Bank, as amended and in effect on the date hereof
after giving effect to all waivers prior to the date hereof.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 10.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 6.1(k);
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 6.1(k);
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Debt.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means the rate of interest publicly announced by ▇▇▇▇▇▇
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"Primex" has the meaning specified in the preamble of this Agreement.
"Quarterly Date" means each March 31, June 30, September 30 and
December 31.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Bank pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Required Banks" means at any time Banks having at least 50.1% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding at least 50.1% of the aggregate unpaid principal amount of
the Loans and aggregate outstanding L/C Obligations.
"Restricted Payment" means (i) any dividend or other distribution on
any shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
capital stock or (b) any option, warrant or other right to acquire shares of the
Borrower's capital stock (but not including payments of principal, premium (if
any) or interest made pursuant to the terms of convertible debt securities prior
to conversion).
"Revolving Credit Period" means the period from and including the
Effective Date to but not including the Termination Date.
"SEC" means the Securities and Exchange Commission (or any successor).
"Significant Subsidiary" means each Subsidiary, but excludes any
Foreign Subsidiary the United States dollar value (or equivalent thereof) of
whose assets is less than 5% of the total assets of the Borrower and the
Subsidiaries, on a consolidated basis.
"Single-Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of the
Borrower or an ERISA Affiliate and no Person other than the Borrower and its
ERISA Affiliates or (ii) was so maintained and in respect of which the Borrower
or an ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Spinoff" means the distribution of shares of the common stock of
Primex as a dividend from ▇▇▇▇ to its shareholders as described in the
Information Statement, such that Primex shall become a separate publicly-held
corporation.
"Spinoff Date" means the effective date of the Spinoff, such date
expected to be December 31, 1996.
"Standby Letter of Credit" has the meaning specified in Section
3.1(a).
"Subsidiary" means, as at any particular time, any Person included as
a consolidated subsidiary of the Borrower in the financial statements contained
in the most recent report filed by the Borrower with the SEC on Form 10 or Form
10-K pursuant to the Securities Exchange Act of 1934, provided that, under then
current regulations of the SEC, such Person may continue to be so included as a
consolidated subsidiary of the Borrower in any such annual report thereafter
filed by the Borrower with the SEC.
"Tax Exempt Financing" means a transaction with a governmental unit or
instrumentality which involves (i) the acquisition of air or water pollution
control or solid waste disposal or industrial development facilities for use at
or in connection with the Borrower's business or a plant or other industrial
facility owned or operated by the Borrower or a Subsidiary, (ii) the issuance by
such governmental unit or instrumentality to Persons other than the Borrower or
a Subsidiary of bonds or other obligations on which the interest is exempt from
Federal income taxes under Section 103(b) of the Internal Revenue Code as now in
effect (or under applicable provisions of any amended Internal Revenue Code) and
substantially all the proceeds of which are applied to finance or refinance the
cost of acquisition of such industrial development or air or water pollution
control or solid waste disposal facilities, and (iii) participation in the
transaction by the Borrower or a Subsidiary in any manner permitted by this
Agreement.
"Temporary Cash Investment" means any Investment in (i) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, (ii) commercial paper
rated at least A-1 by Standard & Poor's Ratings Services and P-1 by ▇▇▇▇▇'▇
Investors Service, Inc., (iii) time deposits with, including certificates of
deposit issued by, any office located in the United States of any bank or trust
company which is organized under the laws of the United States or any state
thereof and has capital, surplus and undivided profits aggregating at least
$1,000,000,000, (iv) repurchase agreements with respect to securities described
in clause (i) above entered into with an office of a bank or trust company
meeting the criteria specified in clause (iii) above or (v) shares of money
market mutual or similar funds which invest substantially all of their assets in
investments satisfying the requirements of clauses (i) through (iv) of this
definition, provided in the case of clauses (i) through (iv) that such
Investment matures within one year from the date of acquisition thereof by the
Borrower or a Subsidiary.
"Termination Date" means (i) December 31, 2001 or (ii) any date to
which the Termination Date shall have been extended pursuant to Section 2.9(b);
provided that in each case of (i) and (ii), the earlier date on which the
termination in whole of the Commitments occurs pursuant to Section 2.9(a) or
Article 7.
"Transition Agreement" means the Transition Services Agreement dated
as of December 31, 1996 between Primex and ▇▇▇▇.
"United States" means the United States.
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Voting Rights" means, as to any corporation, ordinary voting power
(whether associated with outstanding common stock or outstanding preferred
stock, or both) to elect members of the Board of Directors of such corporation
(irrespective of whether or not at the time capital stock of any class or
classes of such corporation shall or might have voting power or additional
voting power upon the occurrence of any contingency).
"Voting Stock" shall mean stock of any class or classes (however
designated) having ordinary voting power for the election of a majority of the
directors of the Borrower other than stock having such power only by reason of a
contingency.
"Wholly Owned" means, with respect to any corporation, a corporation
of which 100% of the Voting Rights are at the time directly or indirectly owned
by the Borrower, by the Borrower and one or more other Wholly Owned
Subsidiaries, or by one or more other Wholly Owned Subsidiaries.
"Withdrawal Liability" shall have the meaning given such term under
Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.2 Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks; provided that, if the Borrower notifies the Agent that the
Borrower wishes to amend any covenant in Article 6 to eliminate the effect of
any change in GAAP on the operation of such covenant (or if the Agent notifies
the Borrower that the Required Banks wish to amend Article 6 for such purpose),
then the Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required Banks.
SECTION 1.3 Computation of Time Periods. (a) In this Agreement and the
Notes in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
(b) In this Agreement and the Notes each reference to a year shall be
a reference to the twelve consecutive months beginning January 1 in such year
and ending December 31 in such year and each reference to a quarter shall be a
reference to one of the three consecutive month periods beginning January 1,
April 1, July 1 or October 1, in each year.
SECTION 1.4 Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on the same date, all of which Loans are of the same type (subject to
Article 8) and, except in the case of Base Rate Loans, have the same initial
Interest Period. Borrowings are classified for purposes of this Agreement
either by reference to the pricing of Loans comprising such Borrowing (e.g., a
"Fixed Rate Borrowing" is a Euro-Dollar Borrowing, a CD Borrowing or a Money
Market Borrowing (excluding any such Borrowing consisting of Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to Section 8.1), and a "Euro-
Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by reference
to the provisions of Article 2 under which participation therein is determined
(i.e., a "Committed Borrowing" is a Borrowing under Section 2.1 in which all
Banks participate in proportion to their Commitments, while a "Money Market
Borrowing" is a Borrowing under Section 2.3 in which the Bank participants are
determined on the basis of their bids in accordance therewith).
ARTICLE 2
THE CREDITS
SECTION 2.1 Commitments to Lend. During the Revolving Credit Period, each
Bank severally agrees, on the terms and conditions set forth in this Agreement,
to make loans to the Borrower pursuant to this Section from time to time in
amounts such that the aggregate principal amount of Committed Loans by such Bank
at any one time outstanding, plus such Bank's Commitment Percentage of the then
aggregate outstanding amount of L/C Obligations, shall not exceed the amount of
its Commitment; provided, that the aggregate outstanding principal amount of all
Loans, plus the aggregate outstanding amount of L/C Obligations, shall not at
any time exceed the aggregate amount of the Commitments. Each Borrowing under
this Section shall be in an aggregate principal amount of $5,000,000 or any
larger whole multiple of $1,000,000 and shall be made from the several Banks
ratably in proportion to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section, prepay Loans to the extent
permitted by Section 2.12 and reborrow at any time during the Revolving Credit
Period under this Section.
SECTION 2.2 Notice of Committed Borrowing. The Borrower shall give the
Agent notice (a "Notice of Committed Borrowing") not later than 11:00 A.M. (New
York City time) on (x) the date of each Base Rate Borrowing, (y) the second
Domestic Business Day before each CD Borrowing and (z) the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Domestic Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are
to bear interest initially at the Base Rate, a CD Rate or a Euro-Dollar Rate;
and
(iv) in the case of a Fixed Rate Borrowing, the
duration of the initial Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
SECTION 2.3 Money Market Borrowings. (a) The Money Market
Option. In addition to Committed Borrowings pursuant to Section 2.1, the
Borrower may, as set forth in this Section, request the Banks during the
Revolving Credit Period to make offers to make Money Market Loans to the
Borrower; provided, that the aggregate outstanding principal amount of
Loans, plus the aggregate outstanding amount of L/C Obligations, shall not
exceed at any time the aggregate amount of the Commitments. The Banks may,
but shall have no obligation to, make such offers and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth
in this Section.
(b) Money Market Quote Request. When the Borrower wishes
to request offers to make Money Market Loans under this Section, it shall
transmit to the Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto so as to be received not
later than 10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar Business
Day prior to the date of Borrowing proposed therein, in the case of a LIBOR
Auction or (y) the Domestic Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Agent shall have mutually agreed
and shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be
a Euro-Dollar Business Day in the case of a LIBOR Auction or a Domestic Business
Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall
be $5,000,000 or a larger whole multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set
forth a Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Agent may agree) of any other Money
Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Agent shall send to the Banks by telex or
facsimile transmission an Invitation for Money Market Quotes substantially in
the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money
Market Loans to which such Money Market Quote Request relates in accordance with
this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Agent by telex or facsimile transmission at its offices
specified in or pursuant to Section 10.1 not later than (x) 2:00 P.M. (New York
City time) on the fourth Euro-Dollar Business Day prior to the proposed date of
Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the Borrower and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective); provided that Money Market
Quotes submitted by the Agent (or any affiliate of the Agent) in the capacity of
a Bank may be submitted, and may only be submitted, if the Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) one hour prior to the deadline for the other Banks,
in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction. Subject to Articles 4 and
9, any Money Market Quote so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form
of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market
Loan for which each such offer is being made, which principal amount (w) may be
greater than or less than the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may not exceed the principal
amount of Money Market Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of Money Market
Loans for which offers being made by such quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the
margin above or below the applicable London Interbank Offered Rate (the "Money
Market Margin") offered for each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000th of 1%) to be added to or
subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the
rate of interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Money Market Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto
or does not specify all of the information required by subsection (d)(ii)
above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Agent shall promptly notify the Borrower
of the terms (x) of any Money Market Quote submitted by a Bank that is in
accordance with subsection (d) and (y) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Bank with respect to the same Money Market Quote Request. Any
such subsequent Money Market Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Money Market Loans for which
offers have been received for each Interest Period specified in the related
Money Market Quote Request, (B) the respective principal amounts and Money
Market Margins or Money Market Absolute Rates, as the case may be, so offered
and (C) if applicable, limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than
10:30 A.M. (New York City time) on (x) the third Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify the
Agent of its acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e). In the case of acceptance, such notice (a "Notice
of Money Market Borrowing") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may accept any
Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the principal amount of each Money Market
Borrowing must be $5,000,000 or a larger whole multiple of $1,000,000;
(iii) acceptance of offers may only be made
on the basis of ascending Money Market Margins or Money Market Absolute Rates,
as the case may be; and
(iv) the Borrower may not accept any offer
that is described in subsection (d)(iii) or that otherwise fails to comply with
the requirements of this Agreement.
Allocation by Agent. If offers are made by two or more Banks with the
same Money Market Margins or Money Market Absolute Rates, as the case may be,
for a greater aggregate principal amount than the amount in respect of which
such offers are accepted for the related Interest Period, the principal amount
of Money Market Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.4 Notice to Banks; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share (if any) of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City
time) on the date of each Borrowing, each Bank participating therein shall make
available its share of such Borrowing, in Federal or other funds immediately
available in New York City, to the Agent at its address referred to in Section
10.1. Unless the Agent determines that any applicable condition specified in
Article 4 has not been satisfied, the Agent will make the funds so received from
the Banks available to the Borrower at the Agent's aforesaid address.
(c) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Agent such Bank's share of such Borrowing, the Agent may assume
that such Bank has made such share available to the Agent on the date of such
Borrowing in accordance with subsection (b) of this Section and the Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Agent, such Bank and the Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the Borrower, a rate per annum equal to the higher of the
Federal Funds Rate and the interest rate applicable thereto pursuant to Section
2.7 and (ii) in the case of such Bank, the Federal Funds Rate. If such Bank
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.5 Notes. (a) The Loans of each Bank shall be evidenced by
a single Note payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower
and the Agent, request that its Loans of a particular type be evidenced by a
separate Note in an amount equal to the aggregate unpaid principal amount of
such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant type. Each reference in this Agreement to the
"Note" of such Bank shall be deemed to refer to and include any or all of such
Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant
to Section 4.1(a), the Agent shall forward such Note to such Bank. Each Bank
shall record the date, amount and type of each Loan made by it and the date and
amount of each payment of principal made by the Borrower with respect thereto,
and may, if such Bank so elects in connection with any transfer or enforcement
of its Note, endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each such Loan
then outstanding; provided that the failure of any Bank to make, or any error in
making, any such recordation or endorsement shall not affect the obligations of
the Borrower hereunder or under the Notes. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Note and to attach to and make a
part of its Note a continuation of any such schedule as and when required.
SECTION 2.6 Maturity of Loans. (a) Each Committed Loan shall
mature, and the principal amount thereof shall be due and payable, together with
accrued interest thereon, on the Termination Date.
(b) Each Money Market Loan included in any Money
Market Borrowing shall mature, and the principal amount thereof shall be due and
payable, together with accrued interest thereon, on the last day of the Interest
Period applicable to such Borrowing.
SECTION 2.7 Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable quarterly in arrears on each
Quarterly Date and, with respect to the principal amount of any Base Rate Loan
converted to a CD Loan or a Euro-Dollar Loan, on each date a Base Rate Loan is
so converted. Any overdue principal of or interest on any Base Rate Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the rate otherwise applicable to Base Rate Loans for
such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period; provided that if any CD
Loan shall, as a result of clause (2)(b) of the definition of Interest Period,
have an Interest Period of less than 30 days, such CD Loan shall bear interest
during such Interest Period at the rate applicable to Base Rate Loans during
such period. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than 90 days, at
intervals of 90 days after the first day thereof. Any overdue principal of or
interest on any CD Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the higher of (i) the
rate applicable to Base Rate Loans for such day and (ii) the sum of the CD
Margin plus the Adjusted CD Rate applicable to such Loan at the date such
payment was due.
The "Adjusted CD Rate" applicable to any Interest Period means a rate
per annum determined pursuant to the following formula:
[ CDBR ]
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%.
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such Interest
Period applies and having a maturity comparable to such Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of new non-personal time deposits in dollars in New York City having a
maturity comparable to the related Interest Period and in an amount of $100,000
or more. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. 327.4(a) (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United States. The
Adjusted CD Rate shall be adjusted automatically on and as of the effective date
of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of 1%)
of the respective rates per annum at which deposits in dollars are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for
such day plus the quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (x) the average (rounded upward, if necessary,
to the next higher 1/16 of 1%) of the respective rates per annum at which one
day (or, if such amount due remains unpaid more than three Euro-Dollar Business
Days, then for such other period of time not longer than three months as the
Agent may select) deposits in dollars in an amount approximately equal to such
overdue payment due to each of the Euro-Dollar Reference Banks are offered to
such Euro-Dollar Reference Bank in the London interbank market for the
applicable period determined as provided above by (y) 1.00 minus the Euro-Dollar
Reserve Percentage (or, if the circumstances described in clause (a) or (b) of
Section 9.1 shall exist, at a rate per annum equal to the sum of 2% plus the
rate applicable to Base Rate Loans for such day) and (ii) the sum of 2% plus the
Euro-Dollar Margin for such day plus the London Interbank Offered Rate
applicable to such Loan at the date such payment was due.
(e) Subject to Section 9.1, each Money Market
LIBOR Loan shall bear interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per annum equal to the sum of
the London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.7(c) as if the related Money Market LIBOR Borrowing
were a Committed Euro-Dollar Borrowing) plus (or minus) the Money Market Margin
quoted by the Bank making such Loan in accordance with Section 2.3. Each Money
Market Absolute Rate Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the Money Market Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.3. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Base Rate for such day.
(f) The Agent shall determine each interest
rate applicable to the Loans hereunder. The Agent shall give prompt notice to
the Borrower and the participating Banks of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence of manifest
error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated by this Section. If
any Reference Bank does not furnish a timely quotation, the Agent shall
determine the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Reference Bank or Banks or, if none of such
quotations is available on a timely basis, the provisions of Section 9.1 shall
apply.
SECTION 2.8 Fees. (a) The Borrower shall pay to the Agent for the
account of the Banks ratably a facility fee at the Facility Fee Rate (determined
daily in accordance with the Pricing Schedule). Such facility fee shall accrue
(i) from and including the Effective Date to but excluding the date of
termination of the Commitments in their entirety, on the daily aggregate amount
of the Commitments (whether used or unused) and (ii) from and including such
date of termination to but excluding the date the Loans shall be repaid in their
entirety, on the daily aggregate outstanding principal amount of the Loans.
Accrued facility fees shall be payable quarterly in arrears on each Quarterly
Date and on the date of termination of the Commitments in their entirety (and,
if later, the date the Loans shall be repaid in their entirety).
(b) The Borrower shall pay to the Agent
on the Closing Date the fees agreed pursuant to the ▇▇▇▇▇▇ Letters. The Agent
shall distribute to each Bank the amount of participation fees previously agreed
by the Agent and such Bank.
SECTION 2.9. Reduction and Extension of the Commitments/Substitution of
Banks. (a) The Borrower shall have the right, upon at least three Domestic
Business Days' notice to the Banks, to permanently terminate in whole or reduce
ratably in part the respective Commitments of the Banks, provided that no such
termination or reduction of Commitments shall be permitted if, after giving
effect thereto and to any prepayments of Loans made on the effective date
thereof, the aggregate outstanding principal amount of Loans, plus the aggregate
outstanding amount of L/C Obligations, would exceed the Commitments then in
effect. Any such reduction shall be in the aggregate amount of $10,000,000 or a
whole multiple of $1,000,000 in excess thereof.
(b) Not earlier than the date 90 days prior and not later than the
date 45 days prior to the Termination Date then in effect, the Borrower may
deliver to the Agent and the Banks a notice requesting that the Commitments be
extended to the first anniversary of such Termination Date. Within 20 days after
its receipt of any such notice, each Bank shall notify the Agent of its
willingness or unwillingness so to extend its Commitment. Any Bank which shall
fail so to notify the Borrower within such period shall be deemed to have
declined to extend its Commitment. In the event each Bank shall be willing to
extend its Commitment, the Agent shall so notify each Bank and the Termination
Date shall without further action be extended to the first anniversary of the
date which shall theretofore have been the Termination Date. In the event that
any Bank shall be unwilling to extend its Commitment, the Commitments of the
Banks will not be extended and the Termination Date shall remain unchanged.
(c) The Borrower may, upon not less than two Domestic Business Days
prior notice to a Bank or Banks and the Agent, terminate in whole the Commitment
of such Bank or Banks and arrange in respect of each terminated Bank for one or
more bank or banks ("Assuming Bank or Banks") (which may be one or more of the
Banks or a bank or banks other than the Banks) to assume a Commitment equal to
or Commitments in aggregate amount equal to the amount of the Commitment of the
terminated Bank, provided that no such termination shall be made unless, at such
time, no event has occurred and is continuing which constitutes an Event of
Default. Such termination shall be effective (x) with respect to each such
terminated Bank's unused Commitment, on the date set forth in such notice,
provided, however, that such date shall be no earlier than two Domestic Business
Days after receipt of such notice or (y) in the event that any Loan is
outstanding from such terminated Bank which is to be paid in connection with
such termination, on the last day of the then current Interest Period relating
to such Loan. Such assumption shall be effective on the date specified in (x)
or (y) above, as the case may be, provided, however, that each terminated Bank
and Assuming Bank shall have delivered to the Borrower and the Agent, on or
prior to such date, an Assignment and Assumption Agreement in substantially the
form of Exhibit F hereto (The term "Bank" as used in this Agreement immediately
following such assumption shall include an Assuming Bank.). Notwithstanding the
provisions of this Section 2.9(c), termination or substitution shall not be
effective unless the Assuming Bank meets, at the time of substitution, the
criteria set forth in this Agreement for an "Eligible Assignee".
Upon the termination of a Bank's Commitment under this subsection
2.9(c), the Borrower will pay or cause to be paid all principal of, and interest
accrued to the date of such payment on, Loans owing to such Bank and pay any
fees payable to such Bank pursuant to the provisions of Section 2.9 with respect
to the Commitment which is terminated, any amounts payable pursuant to the
provisions of Section 2.14 and any other amounts payable to such Bank hereunder
with respect to the Commitment which is terminated or Loans which are paid; and
upon such payments, the obligations of such Bank hereunder shall, by the
provisions hereof, be released and discharged, and it shall be deemed to have
relinquished its rights under this Agreement (other than any rights under
Section 10.3).
SECTION 2.10 Method of Electing Interest Rates. (a) The Loans included in
each Committed Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article 9 and the last sentence of this subsection (a)), as
follows:
(i) if such Loans are Base Rate Loans,
the Borrower may elect to convert such Loans to CD Loans as of any Domestic
Business Day or to Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower
may elect to convert such Loans to Base Rate Loans or Euro-Dollar Loans or
elect to continue such Loans as CD Loans for an additional Interest Period,
subject to Section 2.14 in the case of any such conversion or continuation
effective on any day other than the last day of the then current Interest Period
applicable to such Loans; and
(iii) if such Loans are Euro-Dollar Loans,
the Borrower may elect to convert such Loans to Base Rate Loans or CD Loans or
elect to continue such Loans as Euro-Dollar Loans for an additional Interest
Period, subject to Section 2.14 in the case of any such conversion or
continuation effective on any day other than the last day of the then current
Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Agent not later than 10:30 A.M. (New York City time) on
the third Euro-Dollar Business Day before the conversion or continuation
selected in such notice is to be effective (unless the relevant Loans are to be
converted to Domestic Loans of the other type or are CD Rate Loans to be
continued as CD Rate Loans for an additional Interest Period, in which case such
notice shall be delivered to the Agent not later than 10:30 A.M. (New York City
time) on the second Domestic Business Day before such conversion or continuation
is to be effective). A Notice of Interest Rate Election may, if it so
specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably
among the Loans comprising such Group and (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are each
$5,000,000 or any larger whole multiple of $1,000,000. Notwithstanding the
foregoing, the Borrower may not elect to convert any Committed Loan to, or
continue any Committed Loan as, a Fixed Rate Loan pursuant to any Notice of
Interest Rate Election if at the time such notice is delivered an Event of
Default shall have occurred and be continuing.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof)
to which such notice applies;
(ii) the date on which the conversion or
continuation selected in such notice is to be effective, which shall comply with
the applicable clause of subsection (a) above;
(iii) if the Loans comprising such Group are
to be converted, the new type of Loans and, if the Loans being converted are to
be Fixed Rate Loans, the duration of the next succeeding Interest Period
applicable thereto; and
(iv) if such Loans are to be continued as
CD Loans or Euro-Dollar Loans for an additional Interest Period, the duration of
such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by the Borrower. If no Notice of Interest Rate Election is timely received
prior to the end of an Interest Period for any Group of Loans, the Borrower
shall be deemed to have elected that such Group of Loans be converted to Base
Rate Loans as of the last day of such Interest Period.
(d) An election by the Borrower to change or continue the rate of
interest applicable to any Group of Loans pursuant to this Section shall not
constitute a "Borrowing" subject to the provisions of Section 4.2.
SECTION 2.11 Scheduled Termination of Commitments. The Commitments
shall terminate on the Termination Date.
SECTION 2.12 Optional Prepayments. (a) Subject in the case of any
Fixed Rate Borrowing to Section 2.14, the Borrower may, upon at least one
Domestic Business Day's notice to the Agent, prepay any Group of Domestic Loans
(or any Money Market Borrowing bearing interest at the Base Rate pursuant to
Section 9.1) or upon at least three Euro-Dollar Business Days' notice to the
Agent, prepay any Group of Euro-Dollar Loans, in each case in whole at any time,
or from time to time in part in amounts aggregating $5,000,000 or any larger
whole multiple of $1,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such Group (or Borrowing).
(b) Except as provided in subsection (a)
above the Borrower may not prepay all or any portion of the principal amount of
any Money Market Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share (if any) of such prepayment
and such notice shall not thereafter be revocable by the Borrower.
SECTION 2.13 General Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the Agent
at its address referred to in Section 10.1. The Agent will promptly distribute
to each Bank its ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal of, or interest on,
the Domestic Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-
Dollar Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. Whenever any payment of principal
of, or interest on, the Money Market Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such date
and the Agent may, in reliance upon such assumption, cause to be distributed to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent that the Borrower shall not have so made such payment, each
Bank shall repay to the Agent forthwith on demand such amount distributed to
such Bank together with interest thereon, for each day from the date such amount
is distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.14 Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted (pursuant to Article 2, 7 or 9 or otherwise) on any day other than the
last day of an Interest Period applicable thereto, or the last day of an
applicable period fixed pursuant to Section 2.3(f), or if the Borrower fails to
borrow, prepay, convert or continue any Fixed Rate Loans after notice has been
given to any Bank in accordance with Section 2.4(a), 2.12(c) or 2.10(c) the
Borrower shall reimburse each Bank within 15 days after demand for any resulting
loss or expense incurred by it (or by an existing or prospective Participant in
the related Loan), including (without limitation) any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such payment or conversion or failure to
borrow, prepay, convert or continue, provided that such Bank shall have
delivered to the Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
SECTION 2.15 Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.16 Regulation D Compensation. The Borrower agrees to pay
to each Bank which requests compensation under this paragraph by notice to the
Borrower, on the last day of each Interest Period with respect to any Euro-
Dollar Loan made by such Bank, at any time when such Bank shall be required to
maintain reserves against "Eurocurrency liabilities" under Regulation D of the
Board of Governors of the Federal Reserve System (or, at any time when such Bank
may be required by the Board of Governors of the Federal Reserve System or by
any other governmental authority, whether within the United States or in another
relevant jurisdiction, to maintain reserves against any other category of
liabilities which includes deposits by reference to which the Euro-Dollar Rate
is determined as provided in this Agreement or against any category of
extensions of credit or other assets of such Bank which includes any such Euro-
Dollar Loans), an additional amount (determined by such Bank's calculation or,
if an accurate calculation is impracticable, reasonable estimate using such
reasonable means of allocation as such Bank shall determine) equal to the actual
costs, if any, incurred by such Bank during such Interest Period as a result of
the applicability of the foregoing reserves to such Euro-Dollar Loans.
ARTICLE 3
LETTERS OF CREDIT
SECTION 3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Bank, in reliance on the agreements of the other Banks set
forth in Section 3.4(a), agrees to issue letters of credit ("Letters of Credit")
for the account of the Borrower on any Domestic Business Day from the date
hereof through the Termination Date in such form as may be approved from time to
time by the Issuing Bank; provided that the Issuing Bank shall not issue any
Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the outstanding principal
amount of Loans, plus the aggregate outstanding amount of L/C Obligations, would
exceed the Commitments. Each Letter of Credit shall (i) be denominated in
dollars, (ii) be either (x) a standby letter of credit issued to support (I)
obligations of the Borrower or any of its Subsidiaries, contingent or otherwise,
which finance the working capital or other business needs of the Borrower or its
Subsidiaries or (II) performance obligations of the Borrower and its
Subsidiaries (including, without limitation, to obtain insurance coverage) (a
"Standby Letter of Credit"), or (y) a commercial letter of credit in respect of
the purchase of goods or services by the Borrower or any of its Subsidiaries (a
"Commercial Letter of Credit"), (iii) expire no later than the Termination Date
in the case of a Standby Letter of Credit and no later than 30 days prior to the
Termination Date in the case of a Commercial Letter of Credit and (iv) expire no
later than 360 days after its date of issuance in the case of each Commercial
Letter of Credit.
(b) Each Letter of Credit shall be subject
to the Uniform Customs and, to the extent not inconsistent therewith, the laws
of the State of New York.
SECTION 3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the reasonable satisfaction of the Issuing
Bank. Upon receipt of any Application, the Issuing Bank will process such
Application in accordance with its customary procedures and shall promptly issue
the Letter of Credit requested thereby (but in no event shall the Issuing Bank
be required to issue any Letter of Credit earlier than three Business Days after
its receipt of the Application therefor) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Bank and the Borrower. The Issuing Bank shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Bank shall promptly furnish to the Agent, which shall in turn promptly
furnish to the Banks, notice of the issuance of each Standby Letter of Credit
(including the amount thereof and each Bank's pro rata share). On each L/C Fee
Payment Date, the Issuing Bank shall promptly furnish to the Agent, which shall
in turn promptly furnish to the Borrower and the Banks, notice of the aggregate
face amount of the Letters of Credit outstanding on such date and such other
information as is necessary for the computation of the letters of credit
commission due on such date.
SECTION 3.3 Fees, Commissions and Other Charges. (a) The Borrower will
pay to the Agent for the account of the Issuing Bank and the Banks a commission
on all outstanding Standby Letters of Credit at the rate per annum 1/8% above
the Euro-Dollar Margin of the face amount of each such Standby Letter of Credit,
of which 1/8% per annum will be a fronting fee for the account of the Issuing
Bank, and the remainder will be shared ratably among the Banks, payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date. The
Borrower will pay to the Agent for the account of the Issuing Bank and the Banks
a commission on all outstanding Commercial Letters of Credit at the rate per
annum 1/8% above the Euro-Dollar Margin of the average daily face amount of such
Letters of Credit during the period for which such payment is made, of which
1/8% per annum will be a fronting fee for the account of the Issuing Bank, and
the remainder will be shared ratably among the Banks, payable quarterly in
arrears on each L/C Fee Payment Date.
(b) In addition to the foregoing fees and
commissions, the Borrower shall pay or reimburse the Issuing Bank for such
normal and customary costs and expenses as are incurred or charged by the
Issuing Bank in issuing, negotiating, effecting payment under, amending or
otherwise administering any Letter of Credit.
(c) The Agent shall, promptly following its
receipt thereof, distribute to the Issuing Bank and the L/C Participants all
fees and commissions received by the Agent for their respective accounts
pursuant to this Section.
SECTION 3.4 L/C Participations. (a) The Issuing Bank irrevocably agrees
to grant and hereby grants to each L/C Participant, and, to induce the Issuing
Bank to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Bank, on the terms and conditions hereinafter stated, for such L/C Participant's
own account and risk an undivided interest equal to such L/C Participant's
Commitment Percentage in the Issuing Bank's obligations and rights under each
Letter of Credit issued hereunder and the amount of each draft paid by the
Issuing Bank thereunder. Each L/C Participant unconditionally and irrevocably
agrees with the Issuing Bank that, if a draft is paid under any Letter of Credit
for which the Issuing Bank is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Issuing Bank upon demand at the Issuing Bank's address for notices specified
herein an amount equal to such L/C Participant's Commitment Percentage of the
amount of such draft, or any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any
L/C Participant to the Issuing Bank pursuant to Section 3.4(a) in respect of
any unreimbursed portion of any payment made by the Issuing Bank under any
Letter of Credit is paid to the Issuing Bank within three Business Days after
the date such payment is due, such L/C Participant shall pay to the Issuing Bank
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal Funds Rate during the period from and including the date
such payment is required to the date on which such payment is immediately
available to the Issuing Bank, times (iii) a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which
is 360. If any such amount required to be paid by any L/C Participant pursuant
to Section 3.4(a) is not made available to the Issuing Bank by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Bank shall be entitled to recover from such L/C Participant, on demand,
such amount with interest thereon calculated from such due date at the rate per
annum applicable to Base Rate Advances hereunder. A certificate of the Issuing
Bank submitted to any L/C Participant with respect to any amounts owing under
this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the
Issuing Bank has made payment under any Letter of Credit and has received from
any L/C Participant its pro rata share of such payment in accordance with
Section 3.4(a), the Issuing Bank receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise), or any payment of
interest on account thereof, the Issuing Bank will distribute to such L/C
Participant its pro rata share thereof; provided, however, that in the event
that any such payment received by the Issuing Bank shall be required to be
returned by the Issuing Bank, such L/C Participant shall return to the Issuing
Bank the portion thereof previously distributed by the Issuing Bank to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Bank on each date on which the Issuing Bank
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Bank for the amount of such draft so
paid; provided that if the Issuing Bank does not notify the Borrower as provided
for above earlier than 10:30 A.M. (New York City time) on the date such draft is
paid then such reimbursement payment shall not be due until the Business Day
immediately subsequent to the date such draft is paid. Each such payment shall
be made to the Issuing Bank at its address for notices specified herein in
lawful money of the United States and in immediately available funds. Interest
shall be payable on any and all amounts remaining unpaid by the Borrower under
this Section from the date such amounts become payable (whether at stated
maturity, by acceleration or otherwise) until payment in full at a rate per
annum equal at all times to 1-1/2% per annum above the Base Rate; provided that
if the Issuing Bank does not notify the Borrower as provided for above earlier
than 10:30 A.M. (New York City time) on the date such draft is paid, then for
such day (and until the next Business Day) all amounts remaining unpaid in
respect of such notice shall bear interest at a rate per annum equal to the Base
Rate.
SECTION 3.6 Obligations Absolute. The Borrower's obligations under
this Article 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Issuing Bank, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with the Issuing Bank and the L/C Participants that the Issuing Bank shall not
be responsible for, and the Borrower's Reimbursement Obligations under Section
3.5 shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall in
fact prove to be invalid, fraudulent or forged, or any dispute between or among
the Borrower and any beneficiary of any Letter of Credit or any other party to
which such Letter of Credit may be transferred or any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee. The Issuing Bank shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions constituting gross negligence or willful misconduct of the
Issuing Bank. The Borrower agrees that any action taken or omitted by the
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Bank to the Borrower.
SECTION 3.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Bank shall
promptly notify the Borrower of the date and amount thereof. The responsibility
of the Issuing Bank to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
SECTION 3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with any of the
provisions of this Agreement, or impose obligations or conditions different than
or in addition to those imposed by this Agreement, the provisions of this
Agreement shall apply.
ARTICLE 4
CONDITIONS OF EXTENSIONS OF CREDIT
SECTION 4.1 Condition Precedent to Initial Extension of Credit. The
obligation of each Bank to make an extension of credit (through the making of a
Loan or issuance or participation in a Letter of Credit) on the occasion of the
initial extension of credit is subject to the satisfaction of the following
condition precedent on or before the day of the initial extension of credit:
(a) The Agent shall have received this Agreement
executed in full and the Notes to the order of the Banks, respectively.
(b) The Agent shall have received an Officer's
Certificate attaching copies of the resolutions of the Board of Directors of the
Borrower (or an authorized committee thereof) approving this Agreement and the
Notes, and of all documents evidencing other necessary corporate action with
respect to this Agreement and the Notes.
(c) The Agent shall have received an Officer's
Certificate certifying (i) as to the names and true signatures of the officers
of the Borrower authorized to sign this Agreement and the Notes and the other
documents to be delivered hereunder, (ii) that there has been no material
adverse change in the property, financial condition or operations of the
Borrower and its Subsidiaries, taken as a whole, from that shown on the
consolidated financial statements as at, and for the twelve months ended,
December 31, 1995 and (iii) there is no action, suit or proceeding pending or,
to the knowledge of the Borrower, threatened against the Borrower or any
Subsidiary the reasonable anticipated outcome of which would materially and
adversely affect the Spinoff or any other transaction contemplated hereby, the
ability of the Borrower to perform the obligations under this Agreement or any
Note or which purports to affect the legality, validity or enforceability of
this Agreement or any Note.
(d) The Agent shall have received favorable
opinions of counsel of the Borrower, substantially in the form of Exhibits E-1,
E-2 and E-3 hereto and as to such other matters as any Bank may reasonably
request.
(e) The Agent shall have received a copy of
the solvency opinion dated December 9, 1996 from American Appraisal Associates,
Inc. delivered to Olin's Board of Directors in connection with the Spinoff.
(f) The Agent shall have received all requested
documentation relevant to the potential or actual environmental liabilities of
Primex, with respect to all real property that is to be owned or leased by
Primex and its Subsidiaries after giving effect to the Spinoff, which shall be
reasonably satisfactory to the Banks in form and substance.
(g) All material documentation regarding the
Spinoff and the transactions contemplated thereby and hereby, including the tax
aspects of the Spinoff and the capital and ownership structure of Primex and its
Subsidiaries subsequent to the Spinoff, in each case, shall be reasonably
satisfactory to the Banks in form and substance.
(h) The Agent shall have received all fees due
the Banks from the Borrower on or prior to the Closing Date pursuant to any
prior agreement by the Borrower.
SECTION 4.2 Conditions Precedent to Each Extension of Credit The
obligation of each Bank to make any extension of credit (including the initial
extension of credit) shall be subject to the further conditions precedent that
on the date of such extension of credit (a) the following statements shall be
true (and each of the giving of the applicable Notice of Borrowing or delivery
of an Application for a Letter of Credit and the acceptance by the Borrower of
the proceeds of such extension of credit shall constitute a representation and
warranty by the Borrower that on the date of such extension of credit that such
statements are true):
(i) The representations and warranties
contained in Section 5.1 are correct on and as of the date of such extension of
credit, before and after giving effect to such extension of credit and to the
application of the proceeds therefrom, as though made on and as of such date,
and
(ii) No event has occurred and is continuing,
or would result from such extension of credit or from the application of the
proceeds therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
(b) In the case of an extension of credit in the form of issuance of
a Letter of Credit, the Issuing Bank shall have received the appropriate
Application, executed and delivered by a duly authorized officer of the
Borrower.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 Representations and Warranties of the Borrower. Subject
to Section 5.2, the Borrower represents and warrants as follows:
(a) (1) The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized, has all requisite corporate power and
authority to conduct its business, to own its properties and assets as it is now
conducted and as proposed to be conducted and is qualified or licensed to do
business as a foreign corporation in good standing in all jurisdictions in which
the conduct of business requires it to so qualify or be licensed except where
the failure to be so qualified or licensed or in good standing would not
reasonably be expected to have a Material Adverse Effect.
(2) Each of the Borrower's Subsidiaries
is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, except to the extent that failure to do so would not
reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by
the Borrower of this Agreement, the Notes and any Application, including the
Borrower's use of the proceeds thereof, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) law (including, without
limitation, Regulations G, T, U and X issued by the Board of Governors of the
Federal Reserve Board) or any material contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
the Borrower of this Agreement, the Notes and any Application, except such as
have been obtained. The Borrower and its Subsidiaries are in compliance with
all applicable laws, ordinances, rules, regulations, orders and requirements of
government authorities the failure to comply with which would have a Material
Adverse Effect, except where the necessity of compliance therewith is being
contested in good faith by appropriate proceedings.
(d) This Agreement is, and each of the Notes
and Applications (if any) when delivered hereunder will be, the legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(e) There has been no material adverse change
in the financial condition or operations of the Borrower and its Subsidiaries,
taken as a whole, from that shown by its combined financial statements as at,
and for the twelve months ended, December 31, 1995.
(f) There are no actions, suits or proceedings
pending or, to the knowledge of the Borrower, threatened against the Borrower
or any Subsidiary the reasonably anticipated outcome of which would materially
and adversely affect the ability of the Borrower to perform its obligations
under this Agreement or any Note or which purports to affect the legality,
validity or enforceability of this Agreement or any Note.
(g) After giving effect to each Loan, not
more than 25% of the value of the property and assets of the Borrower, either
individually or on a consolidated basis consists of margin stock (as defined in
the Regulations issued by the Board of Governors of the Federal Reserve Board).
(h) The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Loan will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock, except in compliance with
Regulations G, T, U and X issued by the Board of Governors of the Federal
Reserve Board.
(i) Neither the Borrower nor any Subsidiary
is an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940.
(j) The Borrower and each Subsidiary have
filed all tax returns (Federal, state and local) required to be filed and paid
all taxes shown thereon to be due, including interest and penalties, or provided
adequate reserves for payment thereof.
(k) In the ordinary course of its business,
the Borrower conducts an ongoing review of the effect of Environmental Laws on
the operations and properties of the Borrower, in the course of which it
identifies and evaluates associated liabilities and costs (including, without
limitation, any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any liabilities in
connection with off-site deposit of Hazardous Substances or wastes, any capital
or operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat and any actual
or potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, the Borrower has reasonably
concluded that such associated liabilities and costs, including the costs of
compliance with Environmental Laws, are unlikely to cause a material adverse
change in the financial condition or results of operations of the Borrower from
that shown on its combined financial statements as at, and for the nine month
period ended, September 30, 1996.
(l) (1) The combined balance sheet of
Primex and its Consolidated Subsidiaries as of December 31, 1995 and the related
combined statements of income and cash flow for the fiscal year then ended,
reported on by KPMG Peat Marwick LLP and set forth in the Form 10 of Primex, a
copy of which has been delivered to each of the Banks, fairly present, in
conformity with GAAP, the combined financial position of Primex and its
Consolidated Subsidiaries as of such date and their combined results of
operations and cash flows for such fiscal year.
(2) The unaudited combined balance
sheet of Primex and its Consolidated Subsidiaries as of September 30, 1996 and
the related unaudited combined statements of income and cash flow for the nine
months then ended, set forth in the Form 10 of Primex, a copy of which has been
delivered to each of the Banks, fairly present, in conformity with GAAP applied
on a basis consistent with the financial statements referred to in paragraph
(l)(1) of this Article 5, the combined financial position of Primex and its
Consolidated Subsidiaries as of such date and their combined results of
operations and cash flows for such nine month period (subject to normal year-end
adjustments).
(3) Except as disclosed in the Borrower's
most recent Form 10, Form 10-K or Form 10-Q, as the case may be, since December
31, 1995, there has been no material adverse change in the financial position or
results of operations of the Borrower and its Subsidiaries, considered as a
whole.
(m) Subject to the last sentence of this
Section 4.2(m), (i) no ERISA Event has occurred or is reasonably likely to occur
with respect to the Borrower, (ii) there was no Insufficiency with respect to
any Plan and (iii) each of the Borrower and each ERISA Affiliate is in
compliance in all respects with the presently applicable provisions of ERISA and
the Internal Revenue Code with respect to each Plan. Notwithstanding the
foregoing, this Section 4.2(m) shall be deemed true and correct unless such
ERISA Event, Insufficiency or non-compliance alone or in the aggregate is
reasonably likely to have a Material Adverse Effect.
(n) All information heretofore furnished
by the Borrower to the Agent or any Bank for purposes of or in connection with
this Agreement or any transaction contemplated hereby (other than projections,
assumptions, estimates or predictions), including but not limited to the
Information Statement, is and all such information hereafter furnished by the
Borrower to any Bank (other than projections, assumptions, estimates or
predictions) will be, in each case as modified or supplemented by the other
information so furnished, true and accurate in all material respects on the date
as of which such information is stated or certified. The Borrower has disclosed
to the Banks in writing any and all facts which materially and adversely affect
or may affect (to the extent the Borrower can now reasonably foresee), the
business, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or the ability of the Borrower to perform its
obligations under this Agreement, it being understood that facts do not include
projections, estimates, assumptions or predictions.
SECTION 5.2 Representations and Warranties of ▇▇▇▇. Notwithstanding
Section 5.1, so long as and only as long as ▇▇▇▇ is the Borrower under this
Agreement, the representations and warranties made under this Agreement shall be
only those contained in ▇▇▇▇▇▇▇ ▇.▇(▇)(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇),
(▇), (▇) and (k) (provided that, with respect to ▇▇▇▇, the final sentence of
such Section 5.1(k) shall state as follows "On the basis of this review, the
Borrower has reasonably concluded that, except with respect to any matter
disclosed in Items 1 or 3 in the Borrower's 1995 Form 10-K or in the Commitments
and Contingencies Note to the consolidated financial statements incorporate
therein, such associated liabilities and costs, including the costs of
compliance with Environmental Laws, are unlikely to cause a material adverse
change in the financial condition or results of operations of the Borrower from
that shown on its consolidated financial statements as at, and for the nine
month period ended, September 30, 1996") above, and the other representations
contained in such Section 5.1 shall be without any force or effect with respect
to ▇▇▇▇.
SECTION 5.3 Representations on Spinoff Date. The representations and
warranties of Primex set forth in Section 5.1 shall be deemed made on the
Spinoff Date and shall be true and correct on and as of the Spinoff Date.
ARTICLE 6
COVENANTS OF THE BORROWER
SECTION 6.1 Affirmative Covenants. Subject to Section 6.3, so long as any
Loan or Letter of Credit shall remain outstanding and unpaid or any Bank shall
have any Commitment hereunder, the Borrower will, unless the Required Banks
shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and
cause each Subsidiary to comply, with all applicable laws, ordinances, rules,
regulations, orders and requirements of governmental authorities (including
without limitation Environmental Laws and ERISA and the rules and regulations
thereunder) the failure to comply with which would have a Material Adverse
Effect, except where the necessity of compliance therewith is being contested in
good faith by appropriate proceedings.
(b) Ratio of Consolidated EBIT to Consolidated
Interest Expense. Maintain, for any period of four consecutive fiscal quarters
ending during any period set forth below, a ratio of Consolidated EBIT to
Consolidated Interest Expense at least equal to the ratio set forth opposite
such period below:
Period Ratio
Closing Date through June 30, 1997 1.75 to 1.00
Thereafter 2.00 to 1.00
(c) Ratio of Consolidated Debt to Consolidated EBITDA. Cause the
ratio of (i) Consolidated Debt as at the last day of any fiscal quarter ending
during any period set forth below to (ii) Consolidated EBITDA for the four
consecutive fiscal quarters ending on such last day, to be no greater than the
ratio set forth opposite such period below:
Period Ratio
Closing Date through June 30, 1997 3.50 to 1.00
July 1, 1997 through December 31, 1998 3.25 to 1.00
Fiscal Year 1999 3.25 to 1.00
Thereafter 3.00 to 1.00
(d) Minimum Consolidated Tangible Net Worth.
Cause Consolidated Tangible Net Worth to be, at any date of determination, at
least the sum of (i) $70,000,000 plus (ii) 50% of Consolidated Net Income for
each fiscal quarter ended after December 31, 1996 and prior to the date of such
determination for which such Consolidated Net Income is a positive number.
(e) Use of Proceeds. Use the proceeds of
the Loans made under this Agreement to finance the Spinoff and for general
corporate purposes. None of such proceeds will be used, directly or indirectly,
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying any "margin stock" in violation of Regulation U.
(f) Insurance; Property Maintenance. Maintain,
and cause each Subsidiary to maintain, insurance with reputable insurance
companies or associations in such amount and covering such risks as the
Borrower, in its good faith business judgment, believes necessary; maintain, and
cause each of its Subsidiaries to maintain, all of their respective properties
that are used in the conduct of their respective businesses in good working
order and condition, ordinary wear and tear excepted, except as otherwise
permitted under this Agreement and except where the failure to do so would not
have a Material Adverse Effect.
(g) ERISA. Meet and ensure that each Borrower
and ERISA Affiliate will meet its minimum funding requirements and all of its
other obligations under ERISA with respect to all of its Plans and satisfy all
of its obligations to Multiemployer Plans, including any Withdrawal Liability,
if the failure to do so would have a Material Adverse Effect.
(h) Reporting Requirements. Furnish to the Banks:
(i) as soon as available and in any
event, within 60 days after the end of each of the first three quarters of each
year, a balance sheet of the Borrower and the Consolidated Subsidiaries, on a
consolidated basis, as of the end of such quarter and statements of income and
retained earnings and cash flow of the Borrower and the Consolidated
Subsidiaries, on a consolidated basis, for the period commencing at the end of
the previous year and ending with the end of such quarter, certified by the
chief financial officer of the Borrower, subject to audit and year end
adjustments;
(ii) as soon as available and in any
event within 120 days after the end of each year, a copy of the balance sheets
of the Borrower and the Consolidated Subsidiaries, on a consolidated basis, as
of the end of such year and the statements of income and retained earnings and
cash flow of the Borrower and the Consolidated Subsidiaries, on a consolidated
basis, for such year, certified by KPMG Peat Marwick or another independent
nationally recognized firm of public accountants;
(iii) as soon as possible and in any event
within ten days after an officer of the Borrower becomes aware of the occurrence
of each Event of Default (and each event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default), an Officer's
Certificate setting forth details of such Event of Default or event and the
action which the Borrower has taken and proposes to take with respect thereto;
(iv) contemporaneously with each delivery
of the statements referred to in clauses (i) and (ii) above,(A) either an
Officer's Certificate stating that no Event of Default (other than by reason of
non-compliance with the covenants referred to in Sections 6.1(b), (c) and (d))
and no event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default (other than by reason of non-compliance with the
covenants referred to in Sections 6.1(b), (c) and (d)) occurred during such
quarter or, if applicable, an Officer's Certificate pursuant to clause (iii)
above, (B) an Officer's Certificate stating that, as of the last day of the
preceding quarter, the Borrower was in compliance with the covenants referred to
in Sections 6.1(b), (c) and (d) and providing reasonable details of the
calculations evidencing the Borrower's compliance with such covenants and (C)
reasonable details of each material change in GAAP from those applied in
preparing the statements referred to in Section 5.1(e) insofar as such changes
are applicable to the statements referred to in clauses (i) and (ii) above;
(v) promptly after the sending or filing
thereof, copies of all reports which the Borrower sends to any of its
shareholders, and copies of all reports and registration statements which the
Borrower or any Subsidiary files with the Securities and Exchange Commission or
any national securities exchange (other than those pertaining to employee or
director benefit plans or programs);
(vi) such other information respecting
the condition or operations, financial or otherwise, of the Borrower or any
Subsidiary as any Bank may from time to time reasonably request, including but
not limited to backlog information; and
(vii) as soon as possible (and in any
event within ten days) after the occurrence of an ERISA Event or Insufficiency
with respect to any Plan which individually or the aggregate are reasonably
likely to result in liability to the Borrower in excess of $10,000,000, written
notice of such ERISA Event or Insufficiency.
(i) Conduct of Business and Maintenance of Existence.
Continue, and will cause each Subsidiary to continue, to engage in business
of the same general type as now conducted by the Borrower and its
Subsidiaries, and will preserve, renew and keep in full force and effect,
and will cause each Subsidiary to preserve, renew and keep in full force
and effect their respective existence and their respective material rights,
privileges and franchises necessary in the normal conduct of business;
provided that nothing in this Section 6.1(i) shall prohibit (i) the merger
of a Subsidiary into the Borrower or the merger or consolidation of a
Subsidiary with or into another Person if the Person surviving such
consolidation or merger is a Subsidiary and if, in each case, after giving
effect thereto, no Default shall have occurred and be continuing or
(ii) the termination of the existence of any Subsidiary if the Borrower in
good faith determines that such termination is in the best interest of the
Borrower and is not materially disadvantageous to the Banks.
(j) Consummation of Spinoff. Consummate the Spinoff
no later than January 31, 1997.
(k) Payment of Obligations. Pay and discharge,
and cause each Subsidiary to pay and discharge, at or before maturity, all their
respective material obligations and liabilities (including, without limitation,
tax liabilities and claims of materialmen, warehousemen and the like which if
unpaid might by law give rise to a Lien), except where the same may be contested
in good faith by appropriate proceedings, and maintain, and cause each
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves for the accrual of any of the same.
(l) Inspection of Property, Books and Records.
Keep, and cause each Subsidiary to keep, proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and permit, and cause
each Subsidiary to permit, representatives of any Bank at such Bank's expense
and upon reasonable prior notice to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants (in
consultation with the Borrower), all at such reasonable times and as often as
may reasonably be desired.
(m) Environmental Compliance. Maintain, update
as appropriate, and implement in all material respects an environmental program
reasonably designed to: (i) ensure that the Borrower, its Subsidiaries, any of
their respective operations (including, without limitation, disposal), and any
properties owned, leased or operated by any of them, attain and remain in
substantial compliance with all applicable Environmental Laws, except to the
extent that the failure to do so would not have a Material Adverse Effect; (ii)
reasonably and prudently manage any liabilities or potential liabilities that
the Borrower, its Subsidiaries, any of their respective operations (including,
without limitation, disposal), and any properties owned or leased by any of
them, may have under all applicable Environmental Laws and may have with respect
to Hazardous Substances, except to the extent that the failure to do so would
not have a Material Adverse Effect; and (iii) ensure that the Borrower and its
Subsidiaries undertake reasonable efforts to identify, and reasonably evaluate,
issues of compliance with and liability under Environmental Laws prior to
acquiring, directly or indirectly, any ownership or leasehold interest in any
real property that could give rise to the Borrower or any of its Subsidiaries
being subjected to liability under any Environmental Law as a result of such
acquisition, except to the extent that the failure to do so would not have a
Material Adverse Effect (collectively, the "Environmental Program").
SECTION 6.2 Negative Covenants. Subject to Section 6.3, so long as
any Loan or Letter of Credit shall remain outstanding and unpaid or any Bank
shall have any Commitment hereunder, the Borrower will not, without the written
consent of the Required Banks:
(a) Liens. Create, assume or suffer to exist
or permit any Subsidiary of the Borrower to create, assume or suffer to exist
any Lien upon any of its property or assets, whether now owned or hereafter
acquired, except:
(i) Permitted Encumbrances;
(ii) any Lien on any property or asset of
the Borrower or any Subsidiary existing on the date hereof and set forth in
Schedule 6.2(a); provided that (i) such Lien shall not apply to any other
property or asset of the Borrower or any Subsidiary and (ii) such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(iii) any Lien existing on any property or
asset prior to the acquisition thereof by the Borrower or any Subsidiary or
existing on any property or asset of any Person that becomes a Subsidiary after
the date hereof prior to the time such Person becomes a Subsidiary; provided
that (A) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (B) such
Lien shall not apply to any other property or assets of the Borrower or any
Subsidiary and (C) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(iv) Liens on fixed or capital assets
acquired, constructed or improved by the Borrower or any Subsidiary; provided
that (A) such security interests secure Debt permitted hereunder, (B) such
security interests and the Debt secured thereby are incurred prior to or within
90 days after such acquisition or the completion of such construction or
improvement, (C) the Debt secured thereby does not exceed 80% of the cost of
acquiring, constructing or improving such fixed or capital assets and (D) such
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;
(v) Liens incurred in connection with
any Tax Exempt Financing which do not in the aggregate materially detract from
the value of the property or assets affected thereby or materially impair the
use of such property or assets in the operation of its business;
(vi) Liens on property or assets of a
Domestic Subsidiary to secure obligations of such Subsidiary to the Borrower or
another Domestic Subsidiary; and
(vii) Liens on property or assets of
the Borrower or a Subsidiary; provided that immediately after giving effect
thereto Consolidated Secured Debt under this clause (vii) shall not exceed an
amount equal to 10% of Consolidated Tangible Net Worth.
(b) Subsidiary Debt. Permit at any time
the Debt of the Consolidated Subsidiaries (determined on a consolidated basis)
to exceed an amount equal to 10% of Consolidated Tangible Net Worth.
(c) Mergers, Etc. Merge or consolidate with
or convey, transfer or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its property or assets
(whether now owned or hereafter acquired) to, or acquire all or substantially
all of the property or assets of, any Person, or permit any of its Subsidiaries
to do so, except that (i) any Subsidiary may merge or consolidate with or into,
or transfer property or assets to, the Borrower or any Subsidiary, (ii) the
Borrower or any Subsidiary may acquire property or assets of any other
Subsidiary, (iii) the Borrower or any Subsidiary may acquire all or
substantially all of the property or assets of any other Person, and (iv) any
Subsidiary may transfer property or assets to any other Person, provided in each
case that, after giving effect to such proposed transaction, (A) no Event of
Default or event which, with the giving of notice or lapse of time, or both,
would constitute an Event of Default would exist and (b) in the case of any such
proposed transaction to which the Borrower or any Domestic Subsidiary is a
party, the Borrower or a Domestic Subsidiary is the surviving corporation, and
in the case of any such proposed transaction to which the Borrower and any
Domestic Subsidiary are parties, the Borrower is the surviving corporation,
provided, further, in the case of a transfer of property or assets from a
Subsidiary to a Person that is neither the Borrower nor a Subsidiary that (X)
the property and assets so transferred in any transaction or series of
transactions does not constitute a substantial portion of the consolidated
assets of the Borrower and its Subsidiaries determined in accordance with GAAP,
and (Y) such transfers are made on an arms' length basis.
(d) Sales, Etc. of Assets. Sell, assign or
otherwise dispose of, or permit any Subsidiary to sell, assign or otherwise
dispose of, any of its property or assets, except sales, assignments or other
dispositions (i) for cash (which in this subsection (d) shall include securities
quoted on the New York Stock Exchange or any other similar nationally quoted
exchange or any other publicly traded securities) in arm's-length transactions,
(ii) in the ordinary course of business (which in this clause (ii) shall include
the disposal of assets by means of the contribution of those assets to a joint
venture in which the Borrower or a Subsidiary participates as an equity
participant), (iii) for non-cash consideration the value of which does not
exceed $50,000,000, in the aggregate, in any period of twelve consecutive months
or (iv) in connection with a transaction permitted by subsection (c) or (g) of
this Section 6.2.
(e) ERISA. Create, assume or suffer to
exist or permit the Borrower or any ERISA Affiliate to create, assume or suffer
to exist (i) any Insufficiency of any Plan, (ii) any liability relating to an
ERISA Event or (iii) any Withdrawal Liability under any Multiemployer Plan, if
the sum of (A) any such Insufficiency, ERISA Event liability or Withdrawal
Liability, as applicable, (B) the Insufficiency of any and all other Plans, (C)
the ERISA Event liability of any and all other Plans, (D) amounts then required
to be paid to any and all other Multiemployer Plans by the Borrower or its ERISA
Affiliates as Withdrawal Liability and (E) the aggregate principal amount of all
Debt of the Borrower and all the Subsidiaries secured by Liens permitted by
clause (vii) of Section 6.2(a) shall exceed an amount equal to 10% of
Consolidated Tangible Net Worth.
(f) Restricted Payments. Declare or make
any Restricted Payment unless, after giving effect thereto, the aggregate of all
Restricted Payments declared or made subsequent to the date hereof does not
exceed the sum of (i) $17,000,000 plus (ii) 50% of Consolidated Net Income (or
minus 100% of Consolidated Net Loss) of the Borrower and its Subsidiaries for
the period from December 31, 1996 through the end of the Borrower's then most
recent fiscal quarter (treated for this purpose as a single accounting period);
provided that, in addition to Restricted Payments permitted by the foregoing,
the Borrower may purchase or redeem shares of capital stock (or options or
warrants in respect of such shares) of the Borrower (including related stock
appreciation rights or similar securities) held by present or former officers or
employees of the Borrower or any Subsidiary or by any Plan upon such person's
death, disability, retirement or termination of employment or under the terms of
any such Plan or any agreement under which such shares of stock or related
rights were issued, provided that the aggregate amount of such purchases or
redemptions that may be made pursuant to this proviso shall not exceed
$1,000,000 per fiscal year.
(g) Investments. Make or acquire, or permit
any Subsidiary to make or acquire, any Investment in any Person other than:
(i) Investments in Persons which are,
or as a result of such Investment become, Subsidiaries;
(ii) Temporary Cash Investments;
(iii) loans and advances to employees
made in the ordinary course of business consistent with prudent business
practices;
(iv) Non-cash consideration received
in connection with any sale, lease, transfer or other disposition of assets
permitted under Section 6.2(c) or (d);
(v) loans or advances in respect of Debt
permitted under Section 6.2(b)(ii);
(vi) any Investment not otherwise
permitted by the foregoing clauses of this Section 6.2(g) if, immediately after
such Investment is made or acquired, the aggregate net book value of all
Investments permitted by this clause (vi) does not exceed 25% of Consolidated
Tangible Net Worth; and
(vii) Investments in ▇▇▇▇ resulting
from the cash management system provided for in the Transition Agreement.
(h) Transactions with Affiliates. Directly or
indirectly, pay any funds to or for the account of, make any investment (whether
by acquisition of stock or indebtedness, by loan, advance, transfer of property,
guarantee or other agreement to pay, purchase or service, directly or
indirectly, any Debt, or otherwise) in, lease, sell, transfer or otherwise
dispose of any assets, tangible or intangible, to, or participate in, or effect,
any transaction with, any Affiliate, or permit any Subsidiary to do so, except
on an arms-length basis on terms at least as favorable to the Borrower or such
Subsidiary than could have been obtained from a third party who was not an
Affiliate; provided that the foregoing provisions of this Section shall not
prohibit any such Person from making Restricted Payments permitted by Section
6.2(f).
SECTION 6.3 ▇▇▇▇ Affirmative and Negative Covenants. Notwithstanding
Sections 6.1 and 6.2, so long as, and only so long as, ▇▇▇▇ is the Borrower
(i.e., prior to the Spinoff Date) under this Agreement, the provisions of
Section 6.1 hereof shall be the same as Section 5.1 of the ▇▇▇▇ Credit Agreement
and the provisions of Section 6.2 hereof shall be the same as Section 5.2 of the
▇▇▇▇ Credit Agreement, such Sections of the ▇▇▇▇ Credit Agreement being set
forth in Exhibit G and incorporated herein by reference, and the capitalized
terms used in Exhibit G shall have the same meaning as in the ▇▇▇▇ Credit
Agreement.
ARTICLE 7
EVENTS OF DEFAULT
SECTION 7.1 Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) The Borrower shall fail to pay (i) any
principal of any Loan or Reimbursement Obligation when the same becomes due and
payable or (ii) any interest on any Loan or Reimbursement Obligation or any fees
or other amounts payable under this Agreement within five days of the same
becoming due and payable; or
(b) Any representation or warranty made by the
Borrower herein or by the Borrower (or any of its officers) in connection with
this Agreement shall prove to have been incorrect in any material respect when
made; provided that any representation or warranty made by ▇▇▇▇ herein or by
▇▇▇▇ (or any of its officers) in connection with this Agreement shall not be the
basis for an Event of Default subsequent to the Spinoff Date; or
(c) The Borrower shall fail to perform or
observe (i) any term, covenant or agreement contained in Section 6.1 (b), (c),
(d), (g) or (j) or Section 6.2, or (ii) any term, covenant or agreement
contained in this Agreement or any Note (other than as referred to in subsection
(a) or clause (i) above) on its part to be performed or observed if, in the case
of this clause (ii), such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to the Borrower by the Agent or any
Bank; or
(d) The Borrower or any Subsidiary shall fail
to pay any installment of principal or of any premium or interest on any Debt,
which is outstanding in a principal amount of at least $10,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt, or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate; or
(e) Either the Borrower or any Significant
Subsidiary, or any two or more Subsidiaries, which (when taken together) would
have aggregate total assets constituting those of a Significant Subsidiary shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any such Subsidiary seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any substantial part of its
property, and, in the case of any such proceeding instituted against the
Borrower or such Subsidiary (but not instituted by it), either such proceeding
shall not be dismissed or stayed for 60 days or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for relief
against it or the appointment of a trustee, custodian or other similar official
for it or any substantial part of its property) shall occur; or the Borrower or
any such Subsidiary shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of
money in excess of $5,000,000 shall be rendered against the Borrower or any
Subsidiary and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order and, within 60 days of the commencement
of such proceedings, such judgment shall not have been satisfied or (subject to
clause (ii) below) shall have been stayed or (ii) there shall be any period of
60 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(g) the occurrence of a Change of Control Date;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (e) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Banks, the Agent
may, or upon the request of the Required Banks, the Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; (ii) with the consent of the Required
Banks, the Agent may, or upon the request of the Required Banks, the Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable and (iii) with the consent of
the Required Banks, the Agent may, or upon the request of the Required Banks,
the Agent shall, exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under this Agreement and the Notes and
applicable law. With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to this paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Agent an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Amounts held in such
cash collateral account shall be applied by the Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the Borrower hereunder and under
the Notes. Any amounts in such cash collateral account in excess of the sum of
all obligations of the Borrower hereunder and under the Notes and the face
amount of all Letters of Credit outstanding shall be returned to the Borrower
(or such other Person as may be lawfully entitled thereto). After all such
Letters of Credit shall have expired or been fully drawn upon, all Reimbursement
Obligations shall have been satisfied and all other obligations of the Borrower
hereunder and under the other Loan Documents shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrower (or such other Person as may be lawfully entitled thereto).
ARTICLE 8
THE AGENT
SECTION 8.1 Appointment and Authorization. Each Bank irrevocably appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the Notes as are delegated to the
Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 8.2 Agent and Affiliates. ▇▇▇▇▇▇ Guaranty Trust Company of New
York shall have the same rights and powers under this Agreement as any other
Bank and may exercise or refrain from exercising the same as though it were not
the Agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or affiliate of the Borrower as if
it were not the Agent.
SECTION 8.3 Action by Agent. The obligation of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article 7.
SECTION 8.4 Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
SECTION 8.5 Liability of Agent. Neither the Agent nor any of its
affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks (or, when expressly
required hereby, such different number of Banks required to consent to or
request such action or inaction) or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its affiliates
nor any of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Borrower; (iii) the satisfaction of any condition
specified in Article 4, except receipt of items required to be delivered to the
Agent; or (iv) the validity, effectiveness or genuineness of this Agreement, the
Notes or any other instrument or writing furnished in connection herewith. The
Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may be a bank wire,
telex, facsimile transmission or similar writing) believed by it to be genuine
or to be signed by the property party or parties. Without limiting the
generality of the foregoing, the use of the term "agent" in this Agreement with
reference to the Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
SECTION 8.6 Indemnification. Each Bank shall, ratably in accordance with
its Commitment Percentage, indemnify the Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
SECTION 8.7 Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 8.8 Successor Agent. The Agent may resign at any time by giving
notice thereof to the Banks and the Borrower. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Agent with the
reasonable consent of the Borrower. If no successor Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
without 30 days after the retiring Agent gives notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be a commercial bank organized or licensed under the laws of the United
States or of any State thereof and having a combined capital and surplus of at
least $100,000,000. Upon the acceptance of its appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the right and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent.
SECTION 8.9 Agent's Fee. The Borrower shall pay to the Agent for its own
account fees in the amounts and at the times previously agreed upon between the
Borrower and the Agent.
ARTICLE 9
CHANGE IN CIRCUMSTANCES
SECTION 9.1 Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any CD Loan, Euro-Dollar
Loan or Money Market LIBOR Loan:
(a) the Agent is advised by the Reference Banks
that deposits in dollars (in the applicable amounts) are not being offered to
the Reference Banks in the relevant market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans,
Banks having 50% or more of the aggregate principal amount of the affected Loans
advise the Agent that the Adjusted CD Rate or the London Interbank Offered Rate,
as the case may be, as determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding their CD Loans or Euro-Dollar Loans,
as the case may be, for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be, or to continue or
convert outstanding Loans as or into CD Loans or Euro-Dollar Loans, as the case
may be, shall be suspended and (ii) each outstanding CD Loan or Euro-Dollar
Loan, as the case may be, shall be converted into a Base Rate Loan on the last
day of the then current Interest Period applicable thereto. Unless the Borrower
notifies the Agent at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, (i) if such Fixed Rate Borrowing is a
Committed Borrowing, such Borrowing shall instead be made as a Base Rate
Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market LIBOR
Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall bear
interest for each day from and including the first day to but excluding the last
day of the Interest Period applicable thereto at the Base Rate for such day.
SECTION 9.2 Illegality. If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans
and such Bank shall so notify the Agent, the Agent shall forthwith give notice
thereof to the other Banks and the Borrower, whereupon until such Bank notifies
the Borrower and the Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Bank to make Euro-Dollar Loans, or to
convert outstanding Loans into Euro-Dollar Loans, shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such notice is given, each Euro-
Dollar Loan of such Bank then outstanding shall be converted to a Base Rate Loan
either (a) on the last day of the then current Interest Period applicable to
such Euro-Dollar Loan if such Bank may lawfully continue to maintain and fund
such Loan to such day or (b) immediately if such Bank shall determine that it
may not lawfully continue to maintain and fund such Loan to such day.
SECTION 9.3 Increased Cost and Reduced Return. (a) If on or after
(x) the date hereof, in the case of any Committed Loan or Letter of Credit or
any obligation to make Committed Loans or issue or participate in Letters of
Credit or (y) the date of the related Money Market Quote, in the case of any
Money Market Loan, the adoption of any applicable law, rule or regulation, or
any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
(i) with respect to any CD Loan any such requirement included in an applicable
Domestic Reserve Percentage and (ii) with respect to any Euro-Dollar Loan any
such requirement with respect to which such Bank is entitled to compensation
during the relevant Interest Period under Section 2.16), special deposit,
insurance assessment (excluding, with respect to any CD Loan, any such
requirement reflected in an applicable Assessment Rate) or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or shall impose on any Bank (or its
Applicable Lending Office) or on the United States market for certificates of
deposit or the London interbank market any other condition affecting its Fixed
Rate Loans, its Note or its obligation to make Fixed Rate Loans or issue or
participate in Letters of Credit and the result of any of the foregoing is to
increase the cost to such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan or issuing or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by such Bank
(or its Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, then, within
15 days after demand by such Bank (with a copy to the Agent), the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that,
after the date hereof, the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change in any such law, rule or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank (with a copy to the Agent), the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
(or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower
and the Agent of any event of which it has knowledge (and in any case no later
than six months after such event shall have occurred), occurring after the date
hereof, which will entitle such Bank to compensation pursuant to this Section
and will designate a different Applicable Lending Office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section and setting
forth in reasonable detail the computation of the additional amount or amounts
to be paid to it hereunder shall be conclusive in the absence of manifest error.
In determining such amount, such Bank may use any reasonable averaging and
attribution methods.
SECTION 9.4 Taxes. (a) For the purposes of this Section 9.4, the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this Agreement or under any Note, and all liabilities with
respect thereto, excluding (i) in the case of each Bank and the Agent, taxes
imposed on its net income by the United States, and income or franchise taxes
imposed on it by any jurisdiction in which it is doing business or deemed to be
doing business (other than because of its entering into this Agreement, making
any Loan or receiving any payments or enforcing any rights under this Agreement
or any Note) and (ii) in the case of each Bank, any United States withholding
tax imposed on such payments but only to the extent that such Bank is subject to
United States withholding tax at the time such Bank first becomes a party to
this Agreement except to the extent such Bank's transferor (if any) was entitled
at the time of transfer to receive additional amounts with respect to such
withholding pursuant to Section 9.4(b).
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar taxes, charges or levies
arising from the execution, holding or delivery of this Agreement or any Note.
(a)
(b) Any and all payments by the Borrower to or
for the account of any Bank or the Agent hereunder or under any Note shall be
made without deduction for any Taxes or Other Taxes; provided that, if the
Borrower shall be required by law to deduct any Taxes or Other Taxes from any
such payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) such Bank or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent, at its address referred to in Section 10.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment reasonably satisfactory to the Agent.
(c) The Borrower agrees to indemnify each
Bank and the Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes imposed or asserted on amounts payable under this
Section) paid by such Bank or the Agent (as the case may be) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Bank or the Agent
(as the case may be) makes written demand therefor.
(d) Each Bank organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its execution
and delivery of this Agreement in the case of each Bank listed on the signature
pages hereof and on or prior to the date on which it becomes a Bank in the case
of each other Bank, and from time to time thereafter if requested in writing by
the Borrower (but only if such Bank is or remains lawfully able to do so), shall
provide the Borrower and the Agent with Internal Revenue Service Form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Bank is entitled to benefits under an income tax
treaty to which the United States is a party which exempts the Bank from United
States withholding tax or reduces the rate of withholding tax on payments of
interest for the account of such Bank or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States.
(e) For any period with respect to which a Bank
has failed to provide the Borrower or the Agent with the appropriate form
pursuant to Section 9.4(d) (unless such failure is due to a change in treaty,
law or regulation occurring subsequent to the date on which such form originally
was required to be provided), such Bank shall not be entitled to indemnification
under Section 9.4(b) or (c) with respect to Taxes imposed by the United States;
provided that if a Bank, which is otherwise exempt from or entitled to a reduced
rate of withholding tax, becomes subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes.
(f) If the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this Section, then: (i)
such Bank will change the jurisdiction of its Applicable Lending Office if, in
the judgment of such Bank, such change (x) will eliminate or reduce any such
additional payment that may thereafter accrue and (y) is not otherwise
disadvantageous to such Bank and (ii) if the Taxes or Other Taxes giving rise to
the payment of such additional amounts are, in the good-faith judgment of both
such Bank and the Borrower, refundable under applicable law, such Bank shall,
upon the Borrower's written request and at its expense, take such action
(including the filing and prosecution of a claim for refund) as may be required
to obtain a refund of such Taxes or Other Taxes and shall pay over any such
refund received (together with any interest paid thereon) to the Borrower within
15 days after receipt thereof.
SECTION 9.5 Base Rate Loans Substituted for Affected Fixed Rate Loans. If
(i) the obligation of any Bank to make, or convert outstanding Loans to, Euro-
Dollar Loans has been suspended pursuant to Section 9.2 or (ii) any Bank has
demanded compensation under Section 9.3 or 9.4 with respect to its CD Loans or
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until such
Bank notifies the Borrower that the circumstances giving rise to such suspension
or demand for compensation no longer exist:
(a) all Loans which would otherwise be made
by such Bank as (or continued as or converted into) CD Loans or Euro-Dollar
Loans, as the case may be, shall instead be Base Rate Loans (on which interest
and principal shall be payable contemporaneously with the related Fixed Rate
Loans of the other Banks); and
(b) after each of its CD Loans or Euro-Dollar
Loans, as the case may be, has been repaid (or converted to a Base Rate Loan),
all payments of principal which would otherwise be applied to repay such Fixed
Rate Loans shall be applied to repay its Base Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
notice no longer apply, the principal amount of each such Base Rate Loan shall
be converted into a CD Loan or Euro-Dollar Loan, as the case may be, on the
first day of the next succeeding Interest Period applicable to the related CD
Loans or Euro-Dollar Loans of the other Banks.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (a) in the
case of the Borrower or the Agent, at its address, facsimile number or telex
number set forth on the signature pages hereof, (b) in the case of any Bank, at
its address, facsimile number or telex number set forth in its Administrative
Questionnaire or (c) in the case of any party, such other address, facsimile
number or telex number as such party may hereafter specify for the purpose by
notice to the Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Agent under
Article 2 or Article 9 shall not be effective until received.
SECTION 10.2 No Waivers. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.3 Expenses; Indemnification. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses of the Agent, including reasonable fees
and disbursements of special counsel for the Agent, in connection with the
preparation and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Agent and each Bank, including (without duplication) the fees and
disbursements of outside counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.
(b) The Borrower agrees to indemnify the Agent
and each Bank, their respective affiliates and the respective directors,
officers, agents and employees of the foregoing (each an "Indemnitee") and hold
each Indemnitee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be incurred by such
Indemnitee in connection with any investigative, administrative or judicial
proceeding (whether or not such Indemnitee shall be designated a party thereto)
brought or threatened relating to or arising out of this Agreement or any actual
or proposed use of proceeds of Loans hereunder; provided that no Indemnitee
shall have the right to be indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
SECTION 10.4 Sharing of Set-Offs. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Note held by it which is greater than the proportion received by any
other Bank in respect of the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Banks shall be shared by the Banks pro rata; provided that
nothing in this Section shall impair the right of any Bank to exercise any right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness hereunder. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
SECTION 10.5 Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Agent are affected thereby, by the Agent); provided that
no such amendment or waiver shall, unless signed by each affected Bank, (i)
increase or decrease the Commitment of any Bank (except for a ratable decrease
in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or the
amount of any L/C Obligation or any fees hereunder, (iii) postpone the date
fixed for any payment of principal of or interest on any Loan or any L/C
Obligation or any fees hereunder or for the termination of any Commitment, (iv)
change the aggregate amount of Loans required to be repaid on any date or (v)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes, or the number of Banks, which shall be required for the
Banks or any of them to take any action under this Section or any other
provision of this Agreement.
SECTION 10.6 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one
or more banks or other institutions (each a "Participant") participating
interests in its Commitment or any or all of its Loans and L/C Obligations. In
the event of any such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to the Borrower and the Agent, such Bank
shall remain responsible for the performance of its obligations hereunder, and
the Borrower and the Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such participation agreement may provide that such
Bank will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii), (iii), or (iv) of Section 10.5 without the
consent of the Participant. The Borrower agrees that each Participant shall, to
the extent provided in its participation agreement, be entitled to the benefits
of Article 9 with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b). If the Participant is
not incorporated under the laws of the United States or a state thereof, it
shall so notify the Borrower and the Agent and shall comply with Section 9.4(d)
as if it were a Bank on and after the date on which it becomes a Participant.
(c) Any Bank may at any time assign to one or
more banks or other institutions (each an "Assignee") all, or a proportionate
part (equivalent to an initial Commitment of not less than $10,000,000) of all,
of its rights and obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit F hereto executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed
consent of the Borrower, which may be withheld in the Borrower's sole
discretion, and the Agent and the Issuing Bank (which consent may not be
unreasonably withheld); provided that if an Assignee is an affiliate of such
transferor Bank or was a Bank immediately prior to such assignment, no such
consent shall be required; and provided further that such assignment may, but
need not, include rights of the transferor Bank in respect of outstanding Money
Market Loans. Upon execution and delivery of such instrument and payment by
such Assignee to such transferor Bank of an amount equal to the purchase price
agreed between such transferor Bank and such Assignee, such Assignee shall be a
Bank party to this Agreement and shall have all the rights and obligations of a
Bank with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this subsection
(c), the transferor Bank, the Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Bank shall pay to the Agent
an administrative fee for processing such assignment in the amount of $2,500.
If the Assignee is not incorporated under the laws of the United States or a
state thereof, it shall so notify the Borrower and the Agent and shall comply
with Section 9.4(d) on and after the date on which it becomes an Assignee.
(d) Any Bank may at any time assign all or any
portion of its rights under this Agreement and its Note to a Federal Reserve
Bank. No such assignment shall release the transferor Bank from its obligations
hereunder.
(e) Each Assignee and Participant shall be
entitled to the benefit of Section 9.3 and 9.4 but shall not be entitled to
receive any greater payment under such Sections than the transferor Bank would
have been entitled to receive with respect to the rights transferred, unless
such transfer is made with the Borrower's prior written consent or at a time
when the circumstances giving rise to such greater payment did not exist.
SECTION 10.7 Information. Any Bank may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Article 10, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Bank by
or on behalf of the Borrower.
SECTION 10.8 Assignment to Primex; Release. Notwithstanding Section 10.6
hereof, on the Spinoff Date, all rights, liabilities and obligations of ▇▇▇▇
under this Agreement and under the ▇▇▇▇▇▇ Letters will automatically, and
without further act of the parties hereto, be assigned and delegated to Primex,
and Primex will automatically assume all such rights, liabilities and
obligations in full, including without limitation the obligation to pay the
principal of and all interest on any outstanding Notes, Loans or Letters of
Credit hereunder, all fees and all other amounts from time to time owing
hereunder, whether such Loans shall have been made or Letters of Credit issued,
or such interest, fees or other amounts shall have accrued, prior to or after
the date of such assignment, delegation and assumption. Such assignment,
delegation and assumption shall be effective as of the Spinoff Date. At the
time of such assignment, delegation and assumption, ▇▇▇▇ will be automatically
released from any and all obligations, claims and liabilities whatsoever,
whether paid or unpaid, accrued or unaccrued, known or unknown, fixed or
contingent, or otherwise, under this Agreement or arising in connection herewith
(including the ▇▇▇▇▇▇ Letters) and on any Notes, Loans or Letters of Credit
hereunder, and from and after such time Primex will be the "Borrower" and sole
obligor hereunder. On or immediately following the Spinoff Date, Primex shall
deliver to the Agent (or its counsel) an originally executed Note for each Bank
dated the Spinoff Date and such Bank shall within 14 days thereafter return to
▇▇▇▇ marked "cancelled" any Notes previously delivered by ▇▇▇▇.
SECTION 10.9 Collateral. Each of the Banks represents to the Agent and
each of the other Banks that it in good faith is not relying upon any "margin
stock" (as defined in
Regulation U) as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 10.10 Governing Law; Submission to Jurisdiction. This Agreement
and each Note shall be governed by and construed in accordance with the laws of
the State of New York. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The 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.
SECTION 10.11 Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement (including the Notes and any Applications)
constitutes the entire agreement and understanding among the parties hereto and
supersedes any and all prior agreements and understandings, oral or written,
relating to the subject matter hereof. This Agreement shall become effective
upon receipt by the Agent of counterparts hereof signed by each of the parties
hereto (or, in the case of any party as to which an executed counterpart shall
not have been received, receipt by the Agent in form satisfactory to it of
telegraphic, telex, facsimile or other written confirmation from such party of
execution of a counterpart hereof by such party).
SECTION 10.12 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND
THE BANKS HEREBY IRREVOCABLY WAIVES 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
▇▇▇▇ CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telex: None
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
PRIMEX TECHNOLOGIES, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address: ▇▇▇▇▇ ▇▇▇ ▇▇. ▇.
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telex: None
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Associate
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telex:
Facsimile:
Commitments
$28,000,000 ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Associate
$24,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
$18,000,000 THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
$18,000,000 THE BANK OF NOVA SCOTIA
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Relationship Manager
$18,000,000 MELLON BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
$18,000,000 NATIONSBANK, N.A. (South)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
$18,000,000 PNC-BANK, KENTUCKY, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
$18,000,000 SUNTRUST BANK, TAMPA BAY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Total Commitments
$160,000,000.00
===============
EXHIBITS
EXHIBIT A
NOTE
New York, New York
[ ], 1996
For value received, [▇▇▇▇ CORPORATION, a Virginia corporation (prior
to the Spinoff described in the Credit Agreement referred to below,] [PRIMEX
TECHNOLOGIES, INC., a Virginia corporation (from and after the Spinoff,] the
"Borrower"), promises to pay to the order of [ ] (the "Bank"), for the
account of its Applicable Lending Office, the unpaid principal amount of each
Loan made by the Bank to the Borrower pursuant to the Credit Agreement referred
to below on the maturity date provided for in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of each such
Loan on the dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
▇▇▇▇▇▇ Guaranty Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective types thereof and all
repayments of the principal thereof shall be recorded by the Bank and, if the
Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement
dated as of December 23, 1996 among ▇▇▇▇ CORPORATION, PRIMEX TECHNOLOGIES, INC.,
the Banks parties thereto and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Agent (as the same may be amended from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
[As provided in Section 10.8 of the Credit Agreement, on the Spinoff
Date, all obligations of the Borrower under this Note shall be automatically
delegated to and assumed by Primex Technologies, Inc., and ▇▇▇▇ Corporation
shall be automatically released therefrom.]*/ [FN: To be included only in the
Notes executed by Olin.]
[▇▇▇▇ CORPORATION
By:
Name:
Title:]
[PRIMEX TECHNOLOGIES, INC.
By:
Name:
Title:]
LOANS AND PAYMENTS OF PRINCIPAL
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Amount Type Amount of
of of Principal Notation
Date Loan Loan Repaid Made By
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EXHIBIT B
Form of Money Market Quote Request
[Date]
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York (the "Agent")
From:
Re: Credit Agreement (the "Credit Agreement") dated as of
December 23, 1996 among ▇▇▇▇ CORPORATION, PRIMEX TECHNOLOGIES,
INC., the Banks parties thereto and the Agent
We hereby give notice pursuant to Section 2.3 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount/1 Interest Period1/
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
By________________________
Name:
Title:
[FN/1: Not less than one month (LIBOR Auction] or not less than 7 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.]
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Name of Borrower] (the
"Borrower")
Pursuant to Section 2.3 of the Credit Agreement dated as of
December 23, 1996 among ▇▇▇▇ CORPORATION, PRIMEX TECHNOLOGIES, INC., the Banks
parties thereto and the undersigned, as Agent, we are pleased on behalf of the
Borrower to invite you to submit Money Market Quotes to the Borrower for the
following proposed Money Market Borrowing(s):
Date of Borrowing: [ ]
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30
A.M.] (New York City time) on [date].
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
Authorized Officer
Form of Money Market Quote
To: ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent
Re: Money Market Quote to [Name of Borrower] (the "Borrower")
In response to your invitation on behalf of the Borrower dated [
], 19[ ], we hereby make the following Money Market Quote on the following
terms:
1. Quoting Bank: [ ]
2. Person to contact at Quoting Bank:
[ ]
3. Date of Borrowing: [ ]*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following
rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $[ ].]**
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 dated as of December 23, 1996 among ▇▇▇▇ CORPORATION,
PRIMEX TECHNOLOGIES, INC., the Banks parties thereto and yourselves, as
Agent, irrevocably obligates us to make the Money Market Loan(s) for which
any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: By:
Authorized Officer
---------------
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend. Bids
must be made for $5,000,000 or a larger multiple of $1,000,000.
*** Not less than one month or not less than 30 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest
1/10,000th of 1%).
EXHIBIT E
OPINION OF
COUNSEL FOR THE BORROWER
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of [ ], 19[ ] among
(the "Assignor"), (the "Assignee"), (the
"Borrower") and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"Agent").
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Credit Agreement dated as of December 23, 1996 among the
Borrower, the Assignor and the other Banks parties thereto, as Banks, and the
Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $[ ];
WHEREAS, Committed Loans made to the Borrower by the Assignor under
the Credit Agreement in the aggregate principal amount of $[ ] are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $[ ] (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, [the Borrower and
the Agent] and the payment of the amounts specified in Section 3 required to be
paid on the date hereof (i) the Assignee shall, as of the date hereof, succeed
to the rights and be obligated to perform the obligations of a Bank under the
Credit Agreement with a Commitment in an amount equal to the Assigned Amount,
and (ii) the Commitment of the Assignor shall, as of the date hereof, be reduced
by a like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them. 1/ It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Borrower and the Agent. This Agreement is
conditioned upon the consent of the Borrower and the Agent pursuant to Section
10.6(c) of the Credit Agreement. The execution of this Agreement by the
Borrower and the Agent is evidence of this consent. Pursuant to Section
10.6(c), the Borrower agrees to execute and deliver a Note payable to the order
of the Assignee to evidence the assignment and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
By
Name:
Title:
-------------
FN:1/Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be
preferable in an appropriate case to specify these amounts generically or
by formula rather than as a fixed sum.
By
Name:
Title:
By
Name:
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By
Name:
Title: