$250,000,000
364-DAY COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 17, 1998
Among
▇▇▇▇▇▇▇-▇▇▇▇▇ SQUIBB COMPANY,
THE BORROWING SUBSIDIARIES,
THE LENDERS NAMED HEREIN,
CITIBANK, N.A., as Administrative Agent
and
THE CHASE MANHATTAN BANK, as Administrative Agent
E-2-1
TABLE OF CONTENTS
Page
ARTICLE I
Definitions. . . . . . . . . . . . . 1
SECTION 1.1 Defined Terms. . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Classification of Loans and Borrowings . . . . . 14
SECTION 1.3 Terms Generally. . . . . . . . . . . . . . . . . 14
SECTION 1.4 Accounting Terms; GAAP . . . . . . . . . . . . . 15
ARTICLE II
The Credits. . . . . . . . . . . . . 15
SECTION 2.1 Commitments. . . . . . . . . . . . . . . . . . . 15
SECTION 2.2 Loans and Borrowings . . . . . . . . . . . . . . 15
SECTION 2.3 Requests for Revolving Borrowings. . . . . . . . 16
SECTION 2.4 Competitive Bid Procedure. . . . . . . . . . . . 17
SECTION 2.5 Extension of Maturity Date . . . . . . . . . . . 19
SECTION 2.6 Increase of Commitments. . . . . . . . . . . . . 20
SECTION 2.7 Funding of Borrowings. . . . . . . . . . . . . . 22
SECTION 2.8 Interest Elections . . . . . . . . . . . . . . . 23
SECTION 2.9 Termination and Reduction of Commitments . . . . 24
SECTION 2.10 Repayment of Loans; Evidence of Debt. . . . . . 25
SECTION 2.11 Prepayment of Loans . . . . . . . . . . . . . . 25
SECTION 2.12 Fees. . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.13 Interest. . . . . . . . . . . . . . . . . . . . 27
SECTION 2.14 Alternate Rate of Interest. . . . . . . . . . . 27
SECTION 2.15 Increased Costs . . . . . . . . . . . . . . . . 28
SECTION 2.16 Break Funding Payments. . . . . . . . . . . . . 29
SECTION 2.17 Taxes . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.18 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs . . . . . . . . . . . 33
SECTION 2.19 Mitigation Obligations; Replacement of Lenders. 34
SECTION 2.20 Borrowing Subsidiaries. . . . . . . . . . . . . 35
ARTICLE III
Representations and Warranties . . . . . . . . 35
SECTION 3.1 Organization; Powers . . . . . . . . . . . . . . 35
SECTION 3.2 Authorization. . . . . . . . . . . . . . . . . . 36
E-2-2
SECTION 3.3 Enforceability . . . . . . . . . . . . . . . . . 36
SECTION 3.4 Governmental Approvals . . . . . . . . . . . . . 36
SECTION 3.5 Financial Statements; No Material Adverse Change 36
SECTION 3.6 Litigation; Compliance with Laws . . . . . . . . 37
SECTION 3.7 Federal Reserve Regulations. . . . . . . . . . . 37
SECTION 3.8 Use of Proceeds. . . . . . . . . . . . . . . . . 37
SECTION 3.9 Taxes. . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.10 Employee Benefit Plans. . . . . . . . . . . . . 37
SECTION 3.11 Environmental and Safety Matters. . . . . . . . 37
SECTION 3.12 Properties. . . . . . . . . . . . . . . . . . . 38
SECTION 3.13 Investment and Holding Company Status . . . . . 38
ARTICLE IV
Conditions . . . . . . . . . . . . . 38
SECTION 4.1 Effective Date . . . . . . . . . . . . . . . . . 38
SECTION 4.2 Each Credit Event. . . . . . . . . . . . . . . . 39
SECTION 4.3 Initial Borrowing by Each Borrowing Subsidiary . 39
ARTICLE V
Covenants . . . . . . . . . . . . . 40
SECTION 5.1 Existence. . . . . . . . . . . . . . . . . . . . 40
SECTION 5.2 Business and Properties. . . . . . . . . . . . . 40
SECTION 5.3 Financial Statements, Reports, Etc.. . . . . . . 40
SECTION 5.4 Insurance. . . . . . . . . . . . . . . . . . . . 41
SECTION 5.5 Obligations and Taxes. . . . . . . . . . . . . . 41
SECTION 5.6 Litigation and Other Notices . . . . . . . . . . 41
SECTION 5.7 Books and Records. . . . . . . . . . . . . . . . 42
SECTION 5.8 Consolidations, Mergers, and Sales of Assets . . 42
SECTION 5.9 Liens. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.10 Limitation on Sale and Leaseback Transactions . 43
ARTICLE VI
Events of Default . . . . . . . . . . . 44
ARTICLE VII
The Administrative Agents . . . . . . . . . 46
ARTICLE VIII
E-2-3
Miscellaneous . . . . . . . . . . . . 49
SECTION 8.1 Notices. . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.2 Survival of Agreement. . . . . . . . . . . . . . 49
SECTION 8.3 Binding Effect . . . . . . . . . . . . . . . . . 50
SECTION 8.4 Successors and Assigns . . . . . . . . . . . . . 50
SECTION 8.5 Expenses; Indemnity. . . . . . . . . . . . . . . 53
SECTION 8.6 Applicable Law . . . . . . . . . . . . . . . . . 53
SECTION 8.7 Waivers; Amendment . . . . . . . . . . . . . . . 53
SECTION 8.8 Entire Agreement . . . . . . . . . . . . . . . . 54
SECTION 8.9 Severability . . . . . . . . . . . . . . . . . . 54
SECTION 8.10 Counterparts. . . . . . . . . . . . . . . . . . 54
SECTION 8.11 Headings. . . . . . . . . . . . . . . . . . . . 54
SECTION 8.12 Right of Setoff . . . . . . . . . . . . . . . . 55
SECTION 8.13 Jurisdiction; Consent to Service of Process . . 55
SECTION 8.14 Waiver of Jury Trial. . . . . . . . . . . . . . 55
SECTION 8.15 Conversion of Currencies. . . . . . . . . . . . 56
SECTION 8.16 Guaranty. . . . . . . . . . . . . . . . . . . . 56
SECTION 8.17 European Monetary Union . . . . . . . . . . . . 58
SCHEDULES:
Schedule 2.1 -- Commitments
EXHIBITS:
Exhibit A-1 -- Competitive Bid Request
Exhibit A-2 -- Notice of Competitive Bid Request
Exhibit A-3 -- Competitive Bid
Exhibit A-4 -- Competitive Bid Accept/Reject Letter
Exhibit A-5 -- Borrowing Request
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Opinion of Company's Counsel
Exhibit D -- Form of Administrative Questionnaire
Exhibit E -- Form of Borrowing Subsidiary Agreement
Exhibit F -- Form of Borrowing Subsidiary Termination
E-2-4
364-DAY COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT (the "Agreement") dated as of March 17, 1998, among ▇▇▇▇▇▇▇-▇▇▇▇▇
SQUIBB COMPANY, a Delaware corporation (the "Company"), the BORROWING
SUBSIDIARIES (as defined herein), the lenders listed in Schedule 2.1 (the
"Lenders"), THE CHASE MANHATTAN BANK, a New York banking corporation,as
administrative agent for the Lenders (in such capacity, "Chase"), and
CITIBANK, N.A., as administrative agent for the Lenders (in such capacity,
"Citibank"; Chase and Citibank are referred to herein individually as an
"Administrative Agent" and collectively as the "Administrative Agents") and as
competitive advance facility agent (in such capacity, the "Advance Agent").
The Company has requested that the Lenders, on the terms and subject
to the conditions herein set forth (i) extend credit to the Company and the
applicable Borrowing Subsidiaries to enable them to borrow on a standby
revolving credit basis on and after the date hereof and at any time and from
time to time prior to the Maturity Date (such term and each other capitalized
term used but not defined herein having the meaning assigned to it in Article I)
a principal amount not in excess of $250,000,000 (as such amount may be
increased pursuant to Section 2.6) and (ii) provide a procedure pursuant to
which the Company and the Borrowing Subsidiaries may invite the Lenders to bid
on an uncommitted basis on short-term borrowings by the Company or the
applicable Borrowing Subsidiary. The proceeds of such borrowings are to be used
for working capital and other general corporate purposes (other than hostile
acquisitions), including commercial paper backup and repurchase of shares. The
Lenders are willing to extend such credit on the terms and subject to the
conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.12(b).
"Administrative Questionnaire" shall mean an administrative
questionnaire delivered by a Lender pursuant to Section 8.4(e) in the form of
Exhibit D.
E-2-5
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly, Controls or is Controlled by or is
under common Control with the Person specified.
"Alternate Base Rate" shall mean for any day, a rate per annum equal
to the greatest of (a) the rate of interest per annum publicly announced from
time to time by Citibank as its base rate in effect at its principal office in
New York City, (b) 1/2 of one percent above the Federal Funds Effective Rate and
(c) the Base CD Rate in effect for such day plus 1%. If for any reason Citibank
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Base CD Rate or Federal Funds
Effective Rate, or both, specified in clause (b) or (c), respectively, of the
first sentence of this definition, for any reason, including, without
limitation, the inability or failure of Citibank to obtain sufficient quotations
in accordance with the terms hereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate shall be effective on the
effective date of any change in such rate.
"Alternative Currency" shall mean at any time, a common currency of
the European monetary union and any currency (other than Dollars) that is
readily available, freely traded and convertible into Dollars in the London
market and as to which a Dollar Equivalent can be calculated.
"Applicable Percentage" shall mean, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, Applicable Percentage shall mean,
with respect to any Lender, the percentage of the aggregate outstanding
principal amount of the Loans represented by the aggregate outstanding
principal amount of each Lender's Loans.
"Applicable Rate" shall mean on any date, (i) with respect to any
Eurocurrency Revolving Loan, 12 Basis Points per annum, and (ii) with respect to
facility fees payable hereunder, 3 Basis Points per annum.
"Assessment Rate" shall mean, for any day, the net annual assessment
rate (rounded upwards, if necessary, to the next higher Basis Point) as most
recently estimated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit Insurance Corporation (or
any successor) for insurance by such Corporation (or such successor) of time
deposits made in dollars at Citibank's domestic offices.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee in the form of Exhibit B.
"Availability Period" shall mean the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" shall mean the sum of (a) the product of (i) the
E-2-6
Average Weekly Three-Month Secondary CD Rate times (ii) a fraction of which the
numerator is 100% and the denominator is 100% minus the aggregate rates of
(A) basic and supplemental reserve requirements in effect on the date of
effectiveness of such Average Weekly Three-Month Secondary CD Rate, as set forth
below, under Regulation D of the Board applicable to certificates of deposit in
units of $100,000 or more issued by a "member bank" located in a "reserve city"
(as such terms are used in Regulation D) and (B) marginal reserve requirements
in effect on such date of effectiveness under Regulation D applicable to time
deposits of a "member bank" and (b) the Assessment Rate. "Average Weekly
Three-Month Secondary CD Rate" shall mean the three-month secondary certificate
of deposit ("CD") rate for the most recent weekly period covered therein in the
Federal Reserve Statistical release entitled "Weekly Summary of Lending and
Credit Measures (Averages of daily figures)" released in the week during which
occurs the day for which the CD rate is being determined. The CD rate so
reported shall be in effect, for the purposes of this definition, for each day
of the week in which the release date of such publication occurs. If such
publication or a substitute containing the foregoing rate information is not
published by the Federal Reserve for any week, such average rate shall be
determined by Citibank on the basis of quotations received by it from three New
York City negotiable certificate of deposit dealers of recognized standing on
the first Business Day of the week succeeding such week for which such rate
information is not published.
"Basis Point" shall mean 1/100th of 1%.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"Board of Directors" shall mean either the board of directors of the
Company or any duly authorized committee thereof or any committee of officers of
the Company acting pursuant to authority granted by the board of directors of
the Company or any committee of such board.
"Borrower" shall mean the Company or any Borrowing Subsidiary.
"Borrowing" shall mean (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Company for a
Revolving Borrowing in accordance with Section 2.3.
"Borrowing Subsidiary" shall mean any Subsidiary of the Company
designated as a Borrowing Subsidiary by the Company pursuant to Section 2.20.
"Borrowing Subsidiary Agreement" shall mean a Borrowing Subsidiary
Agreement substantially in the form of Exhibit E.
"Borrowing Subsidiary Obligations" shall mean the due and punctual
E-2-7
payment of (i) the principal of and interest on any Loans made by the Lenders
to the Borrowing Subsidiaries pursuant to this Agreement, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities (including, without limitation, the obligations
described in Section 2.20) of the Borrowing Subsidiaries to the Lenders under
this Agreement and the other Loan Documents.
"Borrowing Subsidiary Termination" shall mean a Borrowing Subsidiary
Termination substantially in the form of Exhibit F.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurocurrency Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market, or in the city which is the principal financial center
of the country of issuance of the applicable Alternative Currency.
"Capital Lease Obligations" of any Person shall mean the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Change in Control" shall be deemed to have occurred if (a) any Person
or group of Persons (other than (i) the Company, (ii) any Subsidiary or
(iii) any employee or director benefit plan or stock plan of the Company or a
Subsidiary or any trustee or fiduciary with respect to any such plan when acting
in that capacity or any trust related to any such plan) shall have acquired
beneficial ownership of shares representing more than 20% of the combined voting
power represented by the outstanding Voting Shares of the Company (within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended, and the applicable rules and regulations thereunder), or (b) during any
period of 12 consecutive months, commencing before or after the date of this
Agreement, individuals who on the first day of such period were directors of the
Company (together with any replacement or additional directors who were
nominated or elected by a majority of directors then in office) cease to
constitute a majority of the Board of Directors of the Company.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
E-2-8
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Revolving Loans expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.9,
(b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 8.4, and (c) increased pursuant to Section 2.6. The
initial amount of each Lender's Commitment is set forth on Schedule 2.1, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $250,000,000.
"Company" shall mean ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Company, a Delaware
corporation.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.4.
"Competitive Bid Accept/Reject Letter" shall mean a notification made
by the Company pursuant to Section 2.4(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.4 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted under the bidding
procedure described in Section 2.4.
"Competitive Loan" shall mean a Loan made pursuant to Section 2.4.
Each Competitive Loan shall be a Eurocurrency Competitive Loan or a Fixed Rate
Loan.
"Competitive Loan Exposure" shall mean, with respect to any Lender at
any time, the sum of (a) the aggregate principal amount of the outstanding
Competitive Loans of such Lender denominated in Dollars and (b) the sum of the
Dollar Equivalents of the aggregate principal amounts of the outstanding
Competitive Loans of such Lender denominated in Alternative Currencies.
"Consolidated Net Tangible Assets" shall mean, with respect to the
Company, the total amount of its assets (less applicable reserves and other
properly deductible items) after deducting (i) all current liabilities
(excluding the amount of those which are by their terms extendable or renewable
at the option of the obligor to a date more than 12 months after the date as of
E-2-9
which the amount is being determined) and (ii) all goodwill, tradenames,
trademarks, patents, unamortized debt discount and expense and other like
intangible assets, all as set forth on the most recent balance sheet of the
Company and its consolidated subsidiaries and determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Worth" shall mean at any time for the determination
thereof the sum of all amounts which, in conformity with GAAP, would be included
under the caption "total stockholders' equity" (or any like caption) on a
consolidated balance sheet of the Company and its Subsidiaries as at such time.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Currency" shall mean Dollars or any Alternative Currency.
"Debt" shall mean (i) all obligations represented by notes, bonds,
debentures or similar evidences of indebtedness; (ii) all indebtedness for
borrowed money or for the deferred purchase price of property or services other
than, in the case of any such deferred purchase price, on normal trade terms and
(iii) all rental obligations as lessee under leases which shall have been or
should be recorded as Capital Lease Obligations.
"Default" shall mean any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Dollar Equivalent" shall mean, with respect to any principal amount
of any Competitive Loan denominated in an Alternative Currency, the equivalent
in Dollars of such amount, determined by Citibank using the Exchange Rate in
effect for such Alternative Currency at approximately 11:00 a.m. London time on
the date of the Competitive Bid Request that resulted in the making of such
Competitive Loan.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.1 are satisfied (or waived in accordance with Section 8.7).
"Environmental and Safety Laws" shall mean any and all applicable
current and future treaties, laws (including without limitation common law),
regulations, enforceable requirements, binding determinations, orders, decrees,
judgments, injunctions, permits, approvals, authorizations, licenses,
permissions, written notices or binding agreements issued, promulgated or
entered by any Governmental Authority, relating to the environment, to employee
health or safety as it pertains to the use or handling of, or exposure to, any
hazardous substance or contaminant, to preservation or reclamation of natural
E-2-10
resources or to the management, release or threatened release of any hazardous
substance, contaminant, or noxious odor, including without limitation the
Hazardous Materials Transportation Act, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 and the
Hazardous and Solid Waste Amendments of 1984, the Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1977, the Clean Air Act of
1970, as amended, the Toxic Substances Control Act of 1976, the Occupational
Safety and Health Act of 1970, as amended, the Emergency Planning and Community
Right-to-Know Act of 1986, the Safe Drinking Water Act of 1974, as amended, any
similar or implementing state law, all amendments of any of them, and any
regulations promulgated under any of them.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414 of the Code.
"ERISA Termination Event" shall mean (i) a "Reportable Event"
described in Section 4043 of ERISA and the regulations issued thereunder (other
than a "Reportable Event" not subject to the provision for 30-day notice to the
PBGC under such regulations), or (ii) the withdrawal of the Company or any of
its ERISA Affiliates from a "single employer" Plan during a plan year in which
it was a "substantial employer", both of such terms as defined in Section
4001(a) of ERISA, or (iii) the filing of a notice of intent to terminate a Plan
or the treatment of a Plan amendment as a termination under Section 4041 of
ERISA, or (iv) the institution of proceedings to terminate a Plan by the PBGC or
(v) any other event or condition which is reasonably likely to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan or (vi) the partial or complete withdrawal
of the Company or any ERISA Affiliate of the Company from a Multiemployer Plan
as defined in Section 4001(a)(3) of ERISA.
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in
Article VI.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Rate" shall mean, with respect to any Alternative Currency
on a particular date, the rate at which such Alternative Currency may be
exchanged into Dollars, as set forth on such date on the applicable Reuters
currency page with respect to such Alternative Currency; provided, that the
Company may make a one time election, with the approval of Citibank (such
approval not to be unreasonably withheld), to use Bloomberg currency pages to
determine Exchange Rate instead of Reuters currency pages. In the event that
E-2-11
such rate does not appear on the applicable Reuters currency page, or Bloomberg
currency page, as the case may be, the Exchange Rate with respect to such
Alternative Currency shall be determined by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by
Citibank and the Company or, in the absence of such agreement, such Exchange
Rate shall instead be Citibank's spot rate of exchange in the London interbank
market or other market where its foreign currency exchange operations in respect
of such Alternative Currency is then being conducted, at or about 10:00 A.M.,
local time, at such date for the purchase of Dollars with such Alternative
Currency for delivery two Business Days later; provided, however, that if at the
time of any such determination, for any reason, no such spot rate is being
quoted, Citibank may use any reasonable method it deems appropriate to determine
such rate, and such determination shall be conclusive absent manifest error.
"Extension Letter" shall mean a letter from the Company requesting an
extension of the Maturity Date.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as released on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so released for any day which is a Business Day, the arithmetic
average (rounded upwards to the next 1/100th of 1%), as determined by Citibank,
of the quotations for the day of such transactions received by Citibank from
three Federal funds brokers of recognized standing selected by it.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer or treasurer of such corporation.
"Fixed Rate" shall mean, with respect to any Competitive Loan (other
than a Eurocurrency Competitive Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid.
"Fixed Rate Loan" shall mean a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Lender" shall mean, with respect to any Borrower, any Lender
that is organized under the laws of a jurisdiction other than that in which such
Borrower is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"Funded Debt" shall mean Debt of the Company or a Subsidiary owning
Restricted Property maturing by its terms more than one year after its creation
and Debt classified as long-term debt under GAAP and, in the case of Funded Debt
of the Company, ranking at least pari passu with the Loans.
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
E-2-12
"Governmental Authority" shall mean the government of any nation,
including, but not limited to, the United States of America, or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof,
(c) to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Substances" shall mean any toxic, radioactive, mutagenic,
carcinogenic, noxious, caustic or otherwise hazardous substance, material or
waste, including petroleum, its derivatives, by-products and other hydrocarbons,
including, without limitation, polychlorinated biphenyls ("PCBs"), asbestos or
asbestos-containing material, and any substance, waste or material regulated or
that could reasonably be expected to result in liability under Environmental and
Safety Laws.
"Indenture" shall mean the Indenture dated as of June 1, 1993 between
the Company and Chase, as successor to The Chase Manhattan Bank (National
Association), as Trustee, as amended, supplemented or otherwise modified from
time to time.
"Interest Election Request" shall mean a request by the Company to
convert or continue a Revolving Borrowing in accordance with Section 2.8.
"Interest Payment Date" shall mean (a) with respect to any ABR Loan,
the last day of each March, June, September and December, (b) with respect to
any Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period and (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
E-2-13
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is 1, 2, 3, 6 months (or, if
available, as determined by Citibank and each of the Lenders, 12 months)
thereafter, as the Company may elect, and (b) as to any Fixed Rate Borrowing,
the period (which shall not be less than seven days or more than 360 days)
commencing on the date of such Borrowing and ending on the date specified in the
applicable Competitive Bid Request; provided, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a
Eurocurrency Borrowing only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and, in
the case of a Revolving Borrowing, thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.1 (other than any such financial institution that has ceased to be a party
hereto, pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance or pursuant to the provisions of Section 2.6.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate appearing on Page 3740 or Page 3750, as the case
may be, of Dow ▇▇▇▇▇ Markets (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such service,
as determined by Citibank from time to time for purposes of providing quotations
of interest rates applicable to deposits in Dollars or the applicable
Alternative Currency in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for deposits in Dollars or the applicable
Alternative Currency with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurocurrency Borrowing for such Interest Period
shall be the rate per annum (rounded upwards, if necessary, to the next Basis
Point) equal to the arithmetic average of the rates at which deposits in Dollars
or the applicable Alternative Currency approximately equal in principal amount
to such Borrowing and for a maturity comparable to such Interest Period are
offered to the principal London offices of the Reference Lenders (or, if any
Reference Lender does not at the time maintain a London office, the principal
London office of any Affiliate of such Reference Lender) in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period; provided, however, that, if only two Reference Lenders notify Citibank
of the rates offered to such Reference Lenders (or any Affiliates of such
Reference Lenders) as aforesaid, the LIBO Rate with respect to such Eurocurrency
Borrowing shall be equal to the arithmetic average of the rates so offered to
such Reference Lenders (or any such Affiliates).
E-2-14
"Lien" shall mean any mortgage, lien, pledge, encumbrance, charge or
security interest.
"Loan Documents" means this Agreement, each Borrowing Subsidiary
Agreement, each Borrowing Subsidiary Termination and each promissory note held
by a Lender pursuant to Section 2.10(e).
"Loans" shall mean the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Margin" shall mean, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate in order to determine the
interest rate applicable to such Loan, as specified by the Lender making such
Loan in its related Competitive Bid.
"Margin Regulations" shall mean Regulations G, T, U and X of the Board
as from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Material Adverse Effect" shall mean a material adverse effect on the
business, operations, properties or financial condition of the Company and its
consolidated Subsidiaries, taken as a whole.
"Maturity", when used with respect to any Security, shall mean the
date on which the principal of such Security becomes due and payable as provided
therein or in the Indenture, whether on a Repayment Date, at the Stated Maturity
thereof or by declaration of acceleration, call for redemption or otherwise.
"Maturity Date" shall mean March 16, 1999, subject to extension
pursuant to Section 2.5.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
thereto.
"Notice of Competitive Bid Request" shall mean a notification made
pursuant to Section 2.4 in the form of Exhibit A-2.
"Original Issue Discount Security" shall mean (i) any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof, and (ii) any
other Security deemed an Original Issue Discount Security for United States
Federal income tax purposes.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
E-2-15
"Person" shall mean any natural Person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan as defined in Section 4001(a)(3) of ERISA), subject to the
provisions of Title IV of ERISA or Section 412 of the Code that is maintained
for current or former employees, or any beneficiary thereof, of the Company or
any ERISA Affiliate.
"Rating Agencies" shall mean Moody's and S&P.
"Ratings" shall mean the ratings from time to time established by the
Rating Agencies for senior, unsecured, non-credit-enhanced long-term debt of the
Company.
"Reference Lenders" shall mean Chase, Citibank and Deutsche Bank AG.
"Register" shall have the meaning given such term in Section 8.4(d).
"Repayment Date", when used with respect to any Security to be repaid,
shall mean the date fixed for such repayment pursuant to such Security.
"Required Lenders" shall mean, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing at least 51% of the sum of
the total Revolving Credit Exposures and unused Commitments at such time;
provided that, for purposes of declaring the Loans to be due and payable
pursuant to Article VI, and for all purposes after the Loans become due and
payable pursuant to Article VI or the Commitments shall have expired or
terminated, the Competitive Loan Exposures of the Lenders shall be included in
their respective Revolving Credit Exposures in determining the Required Lenders.
"Restricted Property" shall mean (i) any manufacturing facility, or
portion thereof, owned or leased by the Company or any Subsidiary and located
within the continental United States of America which, in the opinion of the
Board of Directors of the Company, is of material importance to the business of
the Company and its Subsidiaries taken as a whole, but no such manufacturing
facility, or portion thereof, shall be deemed of material importance if its
gross book value (before deducting accumulated depreciation) is less than 2% of
Consolidated Net Tangible Assets, and (ii) any shares of capital stock or
indebtedness of any Subsidiary owning any such manufacturing facility. As used
in this definition, "manufacturing facility" means property, plant and equipment
used for actual manufacturing and for activities directly related to
manufacturing, and it excludes sales offices, research facilities and facilities
used only for warehousing, distribution or general administration.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate outstanding principal amount of such Lender's Revolving
Loans at such time.
E-2-16
"Revolving Loan" shall mean a Loan made pursuant to Section 2.3.
"Sale and Leaseback Transaction" shall mean any arrangement with any
Person pursuant to which the Company or any Subsidiary leases any Restricted
Property that has been or is to be sold or transferred by the Company or the
Subsidiary to such Person, other than (i) temporary leases for a term, including
renewals at the option of the lessee, of not more than three years, (ii) leases
between the Company and a Subsidiary or between Subsidiaries, (iii) leases of
Restricted Property executed by the time of, or within 12 months after the
latest of, the acquisition, the completion of construction or improvement, or
the commencement of commercial operation, of such Restricted Property, and (iv)
arrangements pursuant to any provision of law with an effect similar to that
under former Section 168(f)(8) of the Internal Revenue Code of 1954.
"S&P" shall mean Standard & Poor's Ratings Group or any successor
thereto.
"SEC" shall mean the Securities and Exchange Commission.
"Security" or "Securities" shall mean any note or notes, bond or
bonds, debenture or debentures, or any other evidences of indebtedness, of any
series authenticated and delivered from time to time under the Indenture.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, shall mean the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"subsidiary" shall mean, with respect to any Person (the "parent") at
any date, (i) for purposes of Sections 5.9 and 5.10 only, any Person the
majority of the outstanding Voting Stock of which is owned, directly or
indirectly, by the parent or one or more subsidiaries of the parent of such
Person and (ii) for all other purposes under this Agreement, any corporation,
limited liability company, partnership, association or other entity the accounts
of which would be consolidated with those of the parent in the parent's
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation, limited
liability company, partnership, association or other entity of which securities
or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned,
controlled or held.
"Subsidiary" shall mean a subsidiary of the Company.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority and all liabilities with respect thereto.
E-2-17
"Transactions" means the execution and delivery by the Borrowers of
this Agreement (or, in the case of the Borrowing Subsidiaries, the Borrowing
Subsidiary Agreements), the performance by the Borrowers of this Agreement, the
borrowing of the Loans and the use of the proceeds thereof.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include the
LIBO Rate, the Alternate Base Rate and the Fixed Rate.
"Value" shall mean, with respect to a Sale and Leaseback Transaction,
an amount equal to the present value of the lease payments with respect to the
term of the lease remaining on the date as of which the amount is being
determined, without regard to any renewal or extension options contained in the
lease, discounted at the weighted average interest rate on the Securities of all
series (including the effective interest rate on any Original Issue Discount
Securities) which are outstanding on the effective date of such Sale and
Leaseback Transaction and which have the benefit of Section 1007 of the
Indenture under which the Securities are issued.
"Voting Stock" shall mean, as applied to the stock of any corporation,
stock of any class or classes (however designated) having by the terms thereof
ordinary voting power to elect a majority of the members of the board of
directors (or other governing body) of such corporation other than stock having
such power only by reason of the happening of a contingency.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the equity are, at the time any
determination is being made, owned by such Person or one or more wholly owned
subsidiaries of such Person or by such Person and one or more wholly owned
subsidiaries of such Person.
SECTION 1.2 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
SECTION 1.3 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
E-2-18
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.4 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time.
ARTICLE II
The Credits
SECTION 2.1 Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Company and any
Borrowing Subsidiary which is organized and existing under the laws of the
United States of America or any State thereof from time to time during the
Availability Period in Dollars in an aggregate principal amount that will not
result in (a) such Lender's Revolving Credit Exposure exceeding such Lender's
Commitment or (b) the sum of the total Revolving Credit Exposures plus the total
Competitive Loan Exposures exceeding the total Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Company and each applicable Borrowing Subsidiary may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.2 Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.4. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Company (on its own
behalf or on behalf of any other applicable Borrower) may request in accordance
herewith, and (ii) each Competitive Borrowing shall be comprised entirely of
Eurocurrency Loans or Fixed Rate Loans as the Company (on its own behalf or on
behalf of any other Borrower) may request in accordance herewith. Each Lender
at its option may make any Eurocurrency Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of any Borrower to repay such
Loan in accordance with the terms of this Agreement.
E-2-19
(c) At the commencement of each Interest Period for any Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $10,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing denominated in Dollars shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000, and each
Competitive Borrowing denominated in an Alternative Currency shall be in an
aggregate principal amount that is not less than the Dollar Equivalent of
$10,000,000. Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at any time be more than a total of
15 Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Company (on its own behalf or on behalf of any other Borrower) shall not be
entitled to request, or to elect to convert or continue, any Borrowing if the
Interest Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.3 Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Company (on its own behalf or on behalf of any other
applicable Borrower) shall notify Citibank of such request by telephone (a) in
the case of a Eurocurrency Borrowing, not later than 10:30 a.m., New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 10:30 a.m., New York City time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to Citibank of a written Borrowing Request in the form of Exhibit A-5.
Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period";
(v) the location and number of the account of the Company or the
other applicable Borrowers to which funds are to be disbursed, which shall
comply with the requirements of Section 2.7; and
(vi) the applicable Borrower.
E-2-20
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Revolving Borrowing,
then the Company shall be deemed to have selected an Interest Period of one
month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, Citibank shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.4 Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Company (on its own behalf or on behalf of any other Borrower) may request
Competitive Bids and the Company (on its own behalf and on behalf of any other
Borrowers) may (but shall not have any obligation to) accept Competitive Bids
and borrow Competitive Loans; provided that no Competitive Loan may be requested
that would result in the sum of the total Revolving Credit Exposures plus the
total Competitive Loan Exposures exceeding the total Commitments. To request
Competitive Bids, the Company (on its own behalf and on behalf of any other
Borrowers) shall hand deliver or telecopy to the Advance Agent a duly completed
Competitive Bid Request in the form of Exhibit A-1 hereto, to be received by the
Advance Agent, in the case of a Eurocurrency Borrowing, not later than
10:00 a.m., New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing. A Competitive Bid Request that does not conform substantially to
Exhibit A-1 may be rejected in the Advance Agent's sole discretion, and the
Advance Agent shall promptly notify the Company of such rejection by telecopy.
Each Competitive Bid Request shall specify the following information in
compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the Currency of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be a Eurocurrency Borrowing or
a Fixed Rate Borrowing;
(v) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term "Interest
Period";
(vi) the location and number of the account of the Company or
any other Borrower to which funds are to be disbursed, which shall comply with
the requirements of Section 2.7; and
(vii) the applicable Borrower.
If no election as to the Currency of a Borrowing is specified in any Competitive
Bid Request, then the applicable Borrower shall be deemed to have requested a
Borrowing in Dollars. Promptly following receipt of a Competitive Bid Request
in accordance with this Section, the Advance Agent shall notify the Lenders of
the details thereof by telecopy, inviting the Lenders to submit Competitive
Bids.
E-2-21
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to such Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be received by the Advance Agent
by telecopy, in the form of Exhibit A-3 hereto, in the case of a Eurocurrency
Competitive Borrowing, not later than 9:30 a.m., New York City time, three
Business Days before the proposed date of such Competitive Borrowing, and in the
case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on
the proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the format of Exhibit A-3 may be rejected by the
Advance Agent, and the Advance Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount of the Competitive Loan or Loans that the Lender is willing to make
(which, in the case of a Competitive Borrowing denominated in Dollars, shall be
a minimum of $5,000,000 and an integral multiple of $1,000,000 and, in the case
of a Competitive Borrowing denominated in an Alternative Currency, shall be a
minimum principal amount the Dollar Equivalent of which is equal to $5,000,000,
and which may equal the entire principal amount of the Competitive Borrowing
request by such Borrower), (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Advance Agent shall promptly notify such Borrower by telecopy
of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, such Borrower
may accept or reject any Competitive Bid. Such Borrower shall notify the
Advance Agent by telephone, confirmed by telecopy in the form of a Competitive
Bid Accept/Reject Letter, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Competitive
Borrowing, not later than 2:00 p.m., New York City time, three Business Days
before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 2:00 p.m., New York City time, on the
proposed date of the Competitive Borrowing; provided that (i) the failure of
such Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) such Borrower shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if the Company rejects a Competitive Bid made at
a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by such Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request, (iv) to
the extent necessary to comply with clause (iii) above, such Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is, in the case of a
E-2-22
Competitive Borrowing denominated in Dollars, in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000 and, in the case of a
Competitive Borrowing denominated in an Alternative Currency, in a minimum
principal amount the Dollar Equivalent of which is $5,000,000; provided further
that if a Competitive Loan must be in an amount less than $5,000,000 or an
amount in an Alternative Currency of which the Dollar Equivalent is less than
$5,000,000 because of the provisions of clause (iv) above, such Competitive Loan
may be for a minimum of $5,000,000 or an amount in an Alternative Currency of
which the Dollar Equivalent is $5,000,000 or any integral multiple of $1,000,000
thereof, and in calculating the pro rata allocation of acceptances of portions
of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to
clause (iv) the amounts shall be rounded to integral multiples of $1,000,000 in
a manner which shall be in the discretion of such Borrower. A notice given by
such Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Advance Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Advance Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
Company at least one quarter of an hour earlier than the time by which the other
Lenders are required to submit their Competitive Bids to the Advance Agent
pursuant to paragraph (b) of this Section.
(g) All notices required by this Section 2.4 shall be given in
accordance with Section 8.1.
SECTION 2.5 Extension of Maturity Date. (i) The Company may, by
sending an Extension Letter to Citibank (in which case Citibank shall promptly
deliver a copy to each of the Lenders), during the period of not less than 30
days and not more than 60 days prior to the then current Maturity Date, request
that the Lenders extend the Maturity Date at the time in effect to 364 days
after the Maturity Date then in effect. Each Lender, acting in its sole
discretion, shall, by notice to Citibank given not more than 20 days after the
date of the Extension Letter, advise Citibank in writing whether or not such
Lender agrees to such extension (each Lender that so advises Citibank that it
will not extend the Maturity Date, being referred to herein as a "Non-extending
Lender"); provided that any Lender that does not advise Citibank by the 20th day
after the date of the Extension Letter shall be deemed to be a Non-extending
Lender. The election of any Lender to agree to such extension shall not
obligate any other Lender to agree.
(ii) (A) If Lenders holding Commitments that aggregate at least 51% of
the total Commitments on the 20th day after the date of the Extension Letter
shall not have agreed to extend the Maturity Date, then the Maturity Date shall
not be so extended and the outstanding principal balance of all Loans and other
amounts payable hereunder shall be payable on such Maturity Date. (B) If (and
only if) Lenders holding Commitments that aggregate at least 51% of the total
Commitments on the 20th day after the date of the Extension Letter shall have
agreed to extend the Maturity Date, then the Maturity Date applicable to the
Lenders that shall so have agreed, shall be 364 days after the current Maturity
Date. In the event of such extension, the Commitment of each Non-extending
Lender shall terminate on the Maturity Date in effect prior to such extension,
all Loans and other amounts payable hereunder to such Non-extending Lenders
shall become due and payable on such Maturity Date and the total Commitment of
the Lenders hereunder shall be reduced by the Commitments of Non-extending
Lenders so terminated on such Maturity Date.
E-2-23
(iii) In the event that the conditions of clause (B) of paragraph
(ii) above have been satisfied, the Company shall have the right on or before
the Maturity Date in effect prior to the requested extension, at its own
expense, to require any Non-extending Lender to transfer and assign without
recourse (except as to title and the absence of Liens created by it) (in
accordance with and subject to the restrictions contained in Section 8.4) all
its interests, rights and obligations under this Agreement to one or more banks
or other financial institutions identified to the Non-extending Lender, which
may include any Lender (each an "Additional Commitment Lender"), provided that
(x) such Additional Commitment Lender, if not already a Lender hereunder, shall
be subject to the approval of Citibank and the Company (such approvals not to be
unreasonably withheld), (y) such assignment shall become effective as of a date
specified by the Company (which shall not be later than the Maturity Date in
effect prior to the requested extension) and (z) the Additional Commitment
Lender shall pay to such Non-extending Lender in immediately available funds on
the effective date of such assignment the principal of and interest accrued to
the date of payment on the Loans made by it hereunder and all other amounts
accrued for its account or owed to it hereunder. Notwithstanding the foregoing,
no extension of the Maturity Date shall become effective unless, on the Maturity
Date in effect prior to the requested extension the conditions set forth in
paragraphs (a) and (b) of Section 4.2 shall be satisfied (with all references in
such paragraphs to a Borrowing being deemed to be references to the current
Maturity Date) and Citibank shall have received a certificate to that effect
dated such Maturity Date and executed by a Financial Officer of the Company.
SECTION 2.6 Increase of Commitments. (a) The Company may, by notice
to Citibank (in which case Citibank shall promptly deliver a copy to each of the
Lenders), request that the total Commitments be increased by an amount that will
equal or exceed $20,000,000, but that will not result in the total Commitments
exceeding $500,000,000. Each such notice shall set forth the amount of the
requested increase in the total Commitments and the date on which such increase
is requested to become effective (which shall be not less than 20 days or more
than 45 days after the date of such notice (or such shorter time as may be
agreed upon by the Company and Citibank)), and shall offer each Lender the
opportunity to increase its Commitment by its Applicable Percentage of the
proposed increased amount. Each Lender shall, by notice to the Company and
Citibank given not more than 20 days after the date of the Company's notice (or
such shorter time as may be agreed upon by the Company and Citibank), either
agree to increase its Commitment by all or a portion of the offered amount (each
Lender so agreeing being an "Increasing Lender") or decline to increase its
Commitment (and any Lender that does not deliver such a notice within such
period of 20 days (or such shorter time as may be agreed upon by the Company and
Citibank) shall be deemed to have declined to increase its Commitment) (each
Lender so declining or deemed to have declined being a "Non-increasing Lender").
In the event that, on the 20th day (or such shorter time as may be agreed upon
by the Company and Citibank) after the Company shall have delivered a notice
E-2-24
pursuant to the first sentence of this paragraph, the Lenders shall have agreed
pursuant to the preceding sentence to increase their Commitments by an aggregate
amount less than the increase in the total Commitments requested by the Company,
Citibank or the Company may arrange for one or more banks or other financial
institutions (any such bank or other financial institution as referred to in
this clause (a)being called an "Augmenting Lender"), which may include any
Lender, to extend Commitments or increase their existing Commitments in an
aggregate amount equal to the unsubscribed amount, provided that each Augmenting
Lender, if not already a Lender hereunder, shall be subject to the approval of
the Company and Citibank (which approvals shall not be unreasonably withheld)
and each Augmenting Lender shall execute all such documentation as Citibank
shall reasonably specify to evidence its Commitment and its status as a Lender
hereunder. Increases and new Commitments created pursuant to this clause
(a) shall become effective on the date specified in the notice delivered by the
Company pursuant to the first sentence of this paragraph. Notwithstanding the
foregoing, no increase in the total Commitments (or in the Commitment of any
Lender) shall become effective under this paragraph unless, (i) on the date of
such increase, the conditions set forth in paragraphs (a)and (b) of Section 4.2
shall be satisfied (with all references in such paragraphs to a Borrowing being
deemed to be references to such increase) and Citibank shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of the Company and (ii) to the extent requested from the Company, Citibank shall
have received (with sufficient copies for each of the Lenders) documents
consistent with those delivered on the Effective Date under clauses (b) and (c)
of Section 4.1 as to the corporate power and authority of the Company to borrow
hereunder after giving effect to such increase.
(b) On the effective date (the "Increase Effective Date") of any
increase in the total Commitments pursuant to Section 2.6(a) (the "Commitment
Increase"), (i) the aggregate principal amount of the Loans outstanding (the
"Initial Loans") immediately prior to giving effect to the Commitment Increase
on the Increase Effective Date shall be deemed to be paid, (ii) each Increasing
Lender shall pay to Citibank in same day funds an amount equal to the difference
between (A) the product of (1) such Increasing Lender's Applicable Percentage
(calculated after giving effect to the Commitment Increase) multiplied by (2)
the amount of the Subsequent Borrowings (as hereinafter defined) and (B) the
product of (1) such Increasing Lender's Applicable Percentage (calculated
without giving effect to the Commitment Increase) multiplied by (2) the amount
of the Initial Loans, (iii) each Augmenting Lender shall pay to Citibank in same
day funds an amount equal to the product of (1) such Augmenting Lender's
Applicable Percentage (calculated after giving effect to the Commitment
Increase) multiplied by (2) the amount of the Subsequent Borrowings, and (iv)
after Citibank receives the funds specified in clauses (ii) and (iii) above,
Citibank shall pay to each Non-increasing Lender the portion of such funds that
is equal to the difference between (A) the product of (1) such Non-increasing
Lender's Applicable Percentage (calculated without giving effect to the
Commitment Increase) multiplied by (2) the amount of the Initial Loans, and (B)
the product of (1) such Non-increasing Lender's Applicable Percentage
(calculated after giving effect to the Commitment Increase) multiplied by (2)
the amount of the Subsequent Borrowings, (v) after the effectiveness of the
Commitment Increase, the Company shall be deemed to have made new Borrowings
(the "Subsequent Borrowings") in an aggregate principal amount equal to the
aggregate principal amount of the Initial Loans and of the types and for the
Interest Periods specified in a Borrowing Request delivered to Citibank in
accordance with Section 2.3, (vi) each Non-increasing Lender, each Increasing
E-2-25
Lender and each Augmenting Lender shall be deemed to hold its Applicable
Percentage of each Subsequent Borrowing (calculated after giving effect to the
Commitment Increase) and (vii) the Company shall pay each Increasing Lender and
each Non-increasing Lender any and all accrued but unpaid interest on the
Initial Loans. The deemed payments made pursuant to clause (i) above in respect
of each Eurocurrency Loan shall be subject to indemnification by the Company
pursuant to the provisions of Section 2.16 if the Increase Effective Date occurs
other than on the last day of the Interest Period relating thereto. If
requested by a Lender, the Company, at its own expense, shall execute and
deliver to Citibank on behalf of each Increasing Lender and each Augmenting
Lender a promissory note complying with the provisions of Section 2.10(e)
hereof, in a principal amount equal to the Commitment of such Lender hereunder
after giving effect to the Commitment Increase. Each Increasing Lender shall
promptly surrender to Citibank any previous promissory note held by it, for
return to the Company and shall indemnify the Company for any claims, losses,
damages or expenses (including reasonable fees and disbursements of counsel)
arising out of its failure to surrender such promissory note, provided the
Company does not (unless pursuant to a final judgment of a court of competent
jurisdiction) make any payments in respect of such promissory note.
SECTION 2.7 Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds in Dollars or in the applicable Alternative
Currency, as the case may be, to the account of Citibank or an Affiliate thereof
most recently designated by it for such purpose by notice to the Lenders, by
2:00 p.m., New York City time (or, in the case of any Competitive Loan with
respect to which a Borrower shall have requested funding in another
jurisdiction, to such account in such jurisdiction as Citibank shall designate
for such purpose by notice to the applicable Lenders, by 2:00 p.m., local time).
Citibank will make such Loans available to such Borrower by promptly crediting
the amounts so received, in like funds, to an account of such Borrower
maintained with Citibank in New York City (or, in the case of any Competitive
Loan with respect to which such Borrower shall have requested funding in another
jurisdiction, to such account in such jurisdiction as such Borrower shall have
designated in the applicable Competitive Bid Request).
(b) Unless Citibank shall have received notice from a Lender prior to
the proposed date of any Borrowing that such Lender will not make available to
Citibank such Lender's share of such Borrowing, Citibank may assume that such
Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available to
such Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to Citibank, then the
applicable Lender and the applicable Borrower severally agree to pay to Citibank
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to such Borrower
to but excluding the date of payment to Citibank, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate determined by
Citibank in accordance with banking industry rules on interbank compensation or
(ii) in the case of such Borrower, the interest rate on the applicable
Borrowing; provided that no repayment by such Borrower pursuant to this sentence
shall be deemed to be a prepayment for purposes of Section 2.16. If such Lender
pays such amount to Citibank, then such amount shall constitute such Lender's
Loan included in such Borrowing.
E-2-26
SECTION 2.8 Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Company
(on its own behalf or on behalf of any other Borrower) may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurocurrency Revolving Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Company (on its own behalf or on behalf of any
other Borrower) may elect different options with respect to different portions
of the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Competitive Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the Company (on its
own behalf or on behalf of any other Borrower) shall notify Citibank of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.3 if the Company (on its own behalf or on behalf of any other
Borrower) were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to Citibank of a written Interest Election
Request in a form approved by Citibank and signed by the Company.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.2:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Company (on its own behalf or on behalf
of any other Borrower) shall be deemed to have selected an Interest Period of
one month's duration.
E-2-27
(d) Promptly following receipt of an Interest Election Request,
Citibank shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) If the Company (on its own behalf or on behalf of any other
Borrower) fails to deliver a timely Interest Election Request with respect to a
Eurocurrency Revolving Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and Citibank, at the request of the Required
Lenders, so notifies the Company, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or
continued as a Eurocurrency Borrowing and (ii) unless repaid, each Eurocurrency
Revolving Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.9 Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $10,000,000 and (ii) the Company shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the sum of the Revolving Credit Exposures plus the
Competitive Loan Exposures would exceed the total Commitments.
(c) The Company shall notify Citibank of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, Citibank shall advise the Lenders of the contents
thereof. Each notice delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by the Company may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Company (by notice to Citibank on or prior to the specified effective date) if
such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent (subject to the provisions of Section 2.6). Each
reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.10 Repayment of Loans; Evidence of Debt. (a) Each Borrower
hereby unconditionally promises to pay (i) to Citibank for the account of each
Lender the then unpaid principal amount of its Revolving Loans on the Maturity
Date and (ii) to Citibank for the account of each Lender the then unpaid
principal amount of each Competitive Loan on the last day of the Interest Period
applicable to such Loan.
E-2-28
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) Citibank shall maintain a Register pursuant to subsection 8.4(d),
and an account for each Lender in which it shall record (i) the amount of each
Loan made hereunder and any promissory note evidencing such Loan, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
Citibank hereunder for the account of the Lenders and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to paragraphs (b) and (c) of this Section shall be prima
facie evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or Citibank to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note for its Competitive Loans and a promissory note for its
Revolving Loans. In such event, the applicable Borrower shall prepare, execute
and deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by Citibank. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 8.4) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its assigns).
SECTION 2.11 Prepayment of Loans. (a) The applicable Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to prior notice in accordance with paragraph (b) of
this Section; provided that no Borrower shall have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(b) The Company (on its own behalf or on behalf of any other Borrower)
shall notify Citibank by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurocurrency Revolving Borrowing,
not later than 10:00 a.m., New York City time, three Business Days before the
date of prepayment and (ii) in the case of prepayment of an ABR Revolving
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.9, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.9. Promptly
following receipt of any such notice relating to a Revolving Borrowing, Citibank
shall advise the Lenders of the contents thereof. Each partial prepayment of
any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.2. Each prepayment of a Revolving Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.13.
E-2-29
SECTION 2.12 Fees. (a) The Company agrees to pay to Citibank for the
account of each Lender a facility fee, which shall accrue at the Applicable Rate
on the daily amount of the Commitment of such Lender (whether used or unused)
during the period from and including the date hereof to but excluding the date
on which such Commitment terminates; provided that, if such Lender continues to
have any Revolving Credit Exposure after its Commitment terminates, then such
facility fee shall continue to accrue on the daily amount of such Lender's
Revolving Credit Exposure from and including the date on which its Commitment
terminates to but excluding the date on which such Lender ceases to have any
Revolving Credit Exposure. Accrued facility fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the date
on which the Commitments terminate, commencing on the first such date to occur
after the date hereof; provided that any facility fees accruing after the date
on which the Commitments terminate shall be payable on demand. All facility
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(b) The Company agrees to pay to the Administrative Agents, for their
own account, the administrative, auction and other fees separately agreed upon
between the Company and the Administrative Agents (collectively, the
"Administrative Fees").
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to Citibank for distribution, in the case of
facility fees, to the Lenders. Fees paid shall not be refundable under any
circumstances.
SECTION 2.13 Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest (i) in the case of a Eurocurrency Revolving Loan, at the LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate, or
(ii) in the case of a Eurocurrency Competitive Loan, at the LIBO Rate for the
Interest Period in effect for such Borrowing plus (or minus, as applicable) the
Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise,
such overdue amount shall bear interest, after as well as before judgment, at a
rate per annum equal to (i) in the case of overdue principal of any Loan, 1%
plus the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 1% plus the
rate applicable to ABR Loans as provided in paragraph (a) of this Section.
E-2-30
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at time when the Alternate Base Rate is based on clause (a) of the first
sentence of the definition of Alternate Base Rate shall be computed on the basis
of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or LIBO Rate shall
be determined by Citibank, and such determination shall be conclusive absent
manifest error.
SECTION 2.14 Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:
(a) Citibank shall have determined (which determination shall be made
in good faith and shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the LIBO Rate for such Interest
Period; or
(b) Citibank is advised by the Required Lenders (or, in the case of a
Eurocurrency Competitive Loan, the Lender that is required to make such Loan)
that the LIBO Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining their
Loans (or its Loan) included in such Borrowing for such Interest Period;
then Citibank shall give notice thereof to the Company (on its own behalf or on
behalf of the applicable Borrower) and the Lenders by telephone or telecopy as
promptly as practicable thereafter and, until Citibank notifies the Company and
the Lenders that the circumstances giving rise to such notice no longer exist,
(i) any Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a Eurocurrency
Borrowing shall be ineffective, (ii) if any Borrowing Request requests a
Eurocurrency Revolving Borrowing, such Borrowing shall be made as an ABR
Borrowing and (iii) any request by the Company (on its own behalf or on behalf
of any Borrower) for a Eurocurrency Competitive Borrowing shall be ineffective;
provided that (A) if the circumstances giving rise to such notice do not affect
all the Lenders, then requests by the Company for Eurocurrency Competitive
Borrowings may be made to Lenders that are not affected thereby and (B) if the
circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.
E-2-31
SECTION 2.15 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender; or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurocurrency Loans or Fixed Rate
Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) by an amount deemed by such
Lender to be material or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender to be material, then the applicable Borrower will
pay to such Lender such additional amount or amounts as will compensate such
Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time the Company will pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lender's holding company for any
such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company as specified in
paragraph (a) or (b) of this Section, and setting forth in reasonable detail the
manner in which such amount or amounts shall have been determined, shall be
delivered to the applicable Borrower and shall be conclusive absent manifest
error. The applicable Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrowers shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 60 days prior to the date that such Lender
notifies such Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 60-day period referred to above shall be
extended to include the period of retroactive effect thereof.
E-2-32
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.16 Break Funding Payments. In the event of (a) the payment
of any principal of any Eurocurrency Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurocurrency Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(b) and is revoked in accordance therewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurocurrency Loan or Fixed Rate
Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by any Borrower pursuant to Section 2.19, then, in any such
event, the applicable Borrower shall compensate each Lender for the
out-of-pocket loss, cost and expense attributable to such event. In the case of
a Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the present value of the
excess, if any, of (i) its cost of obtaining the funds for the Loan being paid,
prepaid, refinanced or not borrowed (assumed to be the LIBO Rate applicable
thereto) for the period from the date of such payment, prepayment, refinancing
or failure to borrow or refinance to the last day of the Interest Period for
such Loan (or, in the case of a failure to borrow or refinance the Interest
Period for such Loan which would have commenced on the date of such failure)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would be realized by such Lender in reemploying the funds so paid, prepaid or
not borrowed or refinanced for such period or Interest Period, as the case may
be. A certificate of any Lender setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section and setting forth in
reasonable detail the manner in which such amount or amounts shall have been
determined shall be delivered to the applicable Borrower and shall be conclusive
absent manifest error. Such Borrower shall pay such Lender the amount shown as
due on any such certificate within 10 days after receipt thereof.
SECTION 2.17 Taxes. (a) Any and all payments to the Lenders or the
Administrative Agents hereunder by a Borrower or on behalf of any Borrower shall
be made free and clear of and without deduction for any and all current or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding (i) taxes imposed on any
Administrative Agent or any Lender (or participant) as a result of a present or
former connection between such Administrative Agent or such Lender (or
participant) and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than as a result of entering into this Agreement, performing any obligations
hereunder, receiving any payments hereunder or enforcing any rights hereunder)
and (ii) any taxes that are attributable solely to the failure of any Non-U.S.
Lender (as defined in Section 2.17(g) below) to comply with Section 2.17 (g) or
2.17(h) (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities, collectively or individually, "Non-Excluded
E-2-33
Taxes"). If the relevant Borrower shall be required to deduct any Non-Excluded
Taxes from or in respect of any sum payable hereunder to any Lender or any
Administrative Agent, (i) the sum payable shall be increased by the amount (an
"Additional Amount") necessary so that after making all required deductions
(including deductions applicable to Additional Amounts payable under this
Section 2.17) such Lender or such Administrative Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the relevant Borrower shall make such deductions and
(iii) the relevant Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the relevant Borrower (or the Company, as guarantor,
as applicable) shall pay to the relevant Governmental Authority in accordance
with applicable law any current or future stamp, intangibles or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement or any other Loan Document that
are imposed by a Governmental Authority in a jurisdiction in which the relevant
Borrower or the Company is incorporated, organized, managed and controlled or
considered to have its seat or otherwise has a connection (other than as a
result of entering into this Agreement, performing any obligations hereunder,
receiving any payments hereunder or enforcing any rights hereunder) ("Other
Taxes").
(c) The relevant Borrower (or the Company, as guarantor, as
applicable) shall indemnify each Lender (or participant) and each Administrative
Agent for the full amount of Non-Excluded Taxes and Other Taxes paid by such
Lender (or participant) or such Administrative Agent, as the case may be, and
any liability (including penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with respect thereto,
whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability prepared by a Lender, or an Administrative Agent on
its behalf and setting forth in reasonable detail the manner in which such
amount shall have been determined, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Lender or the Administrative Agent, as the
case may be, makes written demand therefor, which written demand shall be made
within 60 days of the date such Lender or Administrative Agent receives written
demand for payment of such Taxes or Other Taxes from the relevant Governmental
Authority.
(d) If a Lender (or participant) or an Administrative Agent receives
a refund in respect of any Non-Excluded Taxes or Other Taxes as to which it has
been indemnified by the relevant Borrower or with respect to which the relevant
Borrower has paid Additional Amounts pursuant to this Section 2.17, it shall
within 30 days from the date of such receipt pay over such refund to the
relevant Borrower (but only to the extent of indemnity payments made, or
Additional Amounts paid, by the relevant Borrower under this Section 2.17 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of such Lender (or participant) or such Administrative
Agent and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that the
relevant Borrower, upon the request of such Lender (or participant) or such
Administrative Agent, agrees to repay the amount paid over to the relevant
Borrower (plus penalties, interest or other charges) to such Lender (or
participant) or such Administrative Agent in the event such Lender (or
participant) or such Administrative Agent is required to repay such refund to
such Governmental Authority.
E-2-34
(e) As soon as practicable after the date of any payment of
Non-Excluded Taxes or Other Taxes by the relevant Borrower to the relevant
Governmental Authority, the relevant Borrower will deliver to Citibank, at its
addresses referred to in Section 8.1, the original or a certified copy of
a receipt issued by such Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.17 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(g) Each Lender (or participant) that is not a United States Person as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to the Borrower and Citibank two copies of either United States Internal Revenue
Service Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, a certificate representing that such Non-U.S. Lender is not
a bank for purposes of Section 881(c)(3)(A) of the Code, is not a 10 percent
shareholder (within the meaning of Section 881(c)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 881(c)(3)(C) of the Code)), properly completed
and duly executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Company under
this Agreement. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of a
participant, on or before the date such participant becomes a participant
hereunder) and on or before the date, if any, such Non-U.S. Lender changes its
applicable lending office by designating a different lending office (a "New
Lending Office"). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Notwithstanding any other provision of this Section
2.17(g), a Non-U.S. Lender shall not be required to deliver any form pursuant to
this Section 2.17(g) that such Non-U.S. Lender is not legally able to deliver.
(h) A Lender (or participant) that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
a Borrowing Subsidiary is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrowing Subsidiary (with a copy to Citibank), at the time or times prescribed
by applicable law or reasonably requested by the Borrowing Subsidiary, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate,
provided that such Lender (or participant) is legally entitled to complete,
execute and deliver such documentation and in such Lender's reasonable judgment
such completion, execution or submission would not materially prejudice the
legal position of such Lender (or participant).
E-2-35
(i) The relevant Borrower shall not be required to indemnify any
Lender, or to pay any Additional Amounts to any Lender, in respect of any
withholding tax pursuant to paragraph (a) or (c) above to the extent that (i)
the obligation to withhold amounts with respect to such withholding tax was in
effect and would apply to amounts payable to such Lender on the date such Lender
became a party to this Agreement (or, in the case of a participant, on the date
such participant became a participant hereunder) or, with respect to payments to
a New Lending Office, the date such Non-U.S. Lender designated such New Lending
Office with respect to a Loan or, with respect to payments by a Borrower
pursuant to a Competitive Loan, as of the date the Company accepts a Competitive
Bid pursuant to Section 2.4(d); provided, however, that this clause (i) shall
not apply to any Lender (or participant) if the assignment, participation,
transfer or designation of a New Lending Office was made at the request of the
relevant Borrower; and provided further, however, that this clause (i) shall not
apply to the extent the indemnity payment or Additional Amounts any Lender (or
participant) would be entitled to receive (without regard to this clause (i)) do
not exceed the indemnity payment or Additional Amounts that the Lender (or
participant) making the assignment, participation, transfer or designation of
such New Lending Office would have been entitled to receive in the absence of
such assignment, participation, transfer or designation, or (ii) the obligation
to pay such Additional Amounts would not have arisen but for a failure by such
Lender (or participant) to comply with the provisions of paragraph (g) or (h)
above.
(j) Any Lender (or participant) claiming any indemnity payment or
Additional Amounts payable pursuant to this Section 2.17 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the relevant Borrower
or to change the jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the amount of any
such indemnity payment or Additional Amounts that may thereafter accrue and
would not, in the sole determination of such Lender (or participant), be
otherwise disadvantageous to such Lender (or participant).
(k) Nothing contained in this Section 2.17 shall require any Lender
(or participant) or any Administrative Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees, or of amounts payable under
Section 2.15, 2.16 or 2.17, or otherwise) prior to 3:00 p.m., local time at the
place of payment, on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date may,
in the discretion of Citibank, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to Citibank at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, or such other location as Citibank shall designate from time to time,
except that payments pursuant to Sections 2.15, 2.16, 2.17 and 8.5 shall be made
directly to the Persons entitled thereto. Citibank shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in Dollars or, in the case of Competitive
Loans, the applicable Currency, as the case may be.
E-2-36
(b) If at any time insufficient funds are received by and available to
Citibank to pay fully all amounts of principal, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by any Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Company or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless Citibank shall have received notice from a Borrower prior
to the date on which any payment is due to Citibank for the account of the
Lenders hereunder that such Borrower will not make such payment, Citibank may
assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if such Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to Citibank
forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to Citibank, at the greater of the
Federal Funds Effective Rate and a rate determined by Citibank in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.7(b) or 2.18(d), then Citibank may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by Citibank for the account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
E-2-37
SECTION 2.19 Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to file any certificate or document
requested by the Company (consistent with legal and regulatory restrictions), to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such filing,
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not
otherwise be disadvantageous to such Lender.
(b) If any Lender requests compensation under Section 2.15, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then such
Borrower may, upon notice to such Lender and Citibank, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 8.4), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it and any and all rights and interests related thereto) to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) such Borrower shall have
received the prior written consent of the Administrative Agents which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans), accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or such Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result in a reduction in such
compensation or payments.
SECTION 2.20 Borrowing Subsidiaries. The Company may designate any
Wholly Owned Subsidiary of the Company as a Borrowing Subsidiary. Upon the
receipt by Citibank of a Borrowing Subsidiary Agreement executed by such a
Wholly Owned Subsidiary and the Company, such Wholly Owned Subsidiary shall be a
Borrowing Subsidiary and a party to this Agreement. A Subsidiary shall cease to
be a Borrowing Subsidiary hereunder at such time as no Loans, fees or any other
amounts due in connection therewith pursuant to the terms hereof shall be
outstanding to such Subsidiary and such Subsidiary and the Company shall have
executed and delivered to Citibank a Borrowing Subsidiary Termination; provided
that, notwithstanding anything herein to the contrary, no Borrowing Subsidiary
shall cease to be a Borrowing Subsidiary solely because it no longer is a
Wholly Owned Subsidiary of the Company so long as such Borrowing Subsidiary and
the Company shall not have executed and delivered to Citibank a Borrowing
Subsidiary Termination and the Company's guarantee of the Borrowing Subsidiary
Obligations of such Borrowing Subsidiary pursuant to Section 8.16 has not been
released.
E-2-38
ARTICLE III
Representations and Warranties
The Company represents and warrants to each of the Lenders and each of
the Administrative Agents that:
SECTION 3.1 Organization; Powers. The Company (a) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted and (c) is qualified to do business in every
jurisdiction where such qualification is required, except where the failure so
to qualify would not result in a Material Adverse Effect. Each Borrower has the
corporate power and authority to execute and deliver this Agreement (or, in the
case of the Borrowing Subsidiaries, the Borrowing Subsidiary Agreements), to
perform its obligations under this Agreement and to borrow hereunder.
SECTION 3.2 Authorization. The Transactions (a) are within each
Borrower's corporate powers and have been duly authorized by all requisite
corporate action and (b) will not (i) violate (A) any provision of any law,
statute, rule or regulation (including, without limitation, the Margin
Regulations), (B) any provision of the certificate of incorporation or other
constitutive documents or by-laws of the Company or any Subsidiary, (C) any
order of any Governmental Authority or (D) any provision of any indenture,
agreement or other instrument to which the Company or any Subsidiary is a party
or by which it or any of its property is or may be bound, (ii) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of time
or both) a default under any such indenture, agreement or other instrument or
(iii) result in the creation or imposition of any lien upon any property or
assets of the Company or any Subsidiary other than, in the case of clauses
(i)(A), (i)(C), (i)(D), (ii) and (iii), any such violations, conflicts,
breaches, defaults or liens that, individually or in the aggregate, would not
have a Material Adverse Effect.
SECTION 3.3 Enforceability. Each Loan Document constitutes or, when
executed and delivered, will constitute a legal, valid and binding obligation of
each Borrower party thereto, enforceable in accordance with its terms (subject,
as to enforceability, to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity)).
SECTION 3.4 Governmental Approvals. No action, consent or approval
of, registration or filing with or other action by any Governmental Authority is
required in connection with the Transactions.
E-2-39
SECTION 3.5 Financial Statements; No Material Adverse Change. (a)
The Company has heretofore furnished to the Administrative Agents and the
Lenders copies of (i) its audited consolidated financial statements for the
years ended December 31, 1995 and December 31, 1996, respectively, which were
included in its annual report on Form 10-K dated December 31, 1995 and
December 31, 1996, respectively (the "10-Ks"), filed with the SEC under the
Exchange Act and (ii) its unaudited consolidated financial statements for the
quarters ended March 31, 1997, June 30, 1997 and September 30, 1997, which were
included in its Quarterly Report on Form 10-Q dated March 31, 1997, June 30,
1997 and September 30, 1997, respectively (the "10-Qs"), filed with the SEC
under the Exchange Act. Such financial statements present fairly, in all
material respects, the financial condition and the results of operations of the
Company and the Subsidiaries, taken as a whole, as of, and for accounting
periods ending on, such dates in accordance with GAAP (subject, in the case of
unaudited statements, to normal year-end audit adjustments and the absence of
footnotes).
(b) Since December 31, 1997, there has been no material adverse effect
on the business, operations, properties or financial condition of the Company
and its Subsidiaries, taken as a whole.
SECTION 3.6 Litigation; Compliance with Laws. (a) Except as
disclosed in either the most recent 10-K or the most recent 10-Q, as of the date
hereof, there are no actions, proceedings or investigations filed or (to the
knowledge of the Company) threatened against the Company or any Subsidiary in
any court or before any Governmental Authority or arbitration board or tribunal
which question the validity or legality of this Agreement, the Transactions or
any action taken or to be taken pursuant to this Agreement and no order or
judgment has been issued or entered restraining or enjoining the Company from
the execution, delivery or performance of this Agreement nor is there any other
action, proceeding or investigation filed or (to the knowledge of the Company)
threatened against the Company or any Subsidiary in any court or before any
Governmental Authority or arbitration board or tribunal which would be
reasonably likely to result in a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in violation of any law,
rule or regulation, or in default with respect to any judgment, writ, injunction
or decree of any Governmental Authority, where such violation or default would
be reasonably likely to result in a Material Adverse Effect.
SECTION 3.7 Federal Reserve Regulations. No part of the proceeds of
any Loan will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose which entails a violation of, or
which is inconsistent with, the provisions of the Margin Regulations.
SECTION 3.8 Use of Proceeds. All proceeds of the Loans shall be used
for the purposes referred to in the recitals to this Agreement.
E-2-40
SECTION 3.9 Taxes. The Company and the Subsidiaries have filed or
caused to be filed all Federal and material state, local and foreign Tax returns
which are required to be filed by them, and have paid or caused to be paid all
Taxes shown to be due and payable on such returns or on any assessments received
by any of them, other than any Taxes or assessments the validity of which is
being contested in good faith by appropriate proceedings, and with respect to
which appropriate accounting reserves have, to the extent required by GAAP, been
set aside.
SECTION 3.10 Employee Benefit Plans. The present aggregate value of
accumulated benefit obligations of all Plans and all foreign employee pension
benefit plans (based on those assumptions used for disclosure of such
obligations in corporate financial statements in accordance with GAAP) did not,
as of the most recent statements available, exceed the aggregate value of the
assets for all such plans. Except as would not individually or in the aggregate
have a Material Adverse Effect: (a) no ERISA Termination Event has occurred or
(b) each Plan has been established and administered in accordance with its terms
and in compliance with the applicable provisions of ERISA, the Code and other
applicable laws, rules and regulations.
SECTION 3.11 Environmental and Safety Matters. Other than exceptions
to any of the following that would not in the aggregate have a Material Adverse
Effect: (i) the Company and the Subsidiaries comply and have complied with all
applicable Environmental and Safety Laws; (ii) there are and have been no
Hazardous Substances at any property owned, leased or operated by the Company
now or in the past, or at any other location, that could reasonably be expected
to result in liability of the Company or any Subsidiary under any Environmental
and Safety Law or result in costs to any of them arising out of any
Environmental and Safety Law; (iii) there are no past, present, or, to the
knowledge of the Company and the Subsidiaries, anticipated future events,
conditions, circumstances, practices, plans, or legal requirements that could
reasonably be expected to prevent the Company or any of the Subsidiaries from,
or increase the costs to the Company or any of the Subsidiaries of, complying
with applicable Environmental and Safety Laws or obtaining or renewing all
material permits, approvals, authorizations, licenses or permissions required of
any of them pursuant to any such law; and (iv) neither the Company nor any of
the Subsidiaries has retained or assumed, by contract or operation of law, any
liability, fixed or contingent, under any Environmental and Safety Law.
SECTION 3.12 Properties. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property that are material to the business of the Company and its
Subsidiaries taken as a whole, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property that are material to the business of the Company and its Subsidiaries
taken as a whole, and the use thereof by the Company and its Subsidiaries does
not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
E-2-41
SECTION 3.13 Investment and Holding Company Status. Neither the
Company nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
ARTICLE IV
Conditions
SECTION 4.1 Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 8.7):
(a) Citibank (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such party
or (ii) written evidence satisfactory to Citibank (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.
(b) Citibank shall have received a favorable written opinion
(addressed to the Administrative Agents and the Lenders and dated the Effective
Date) of Cravath, Swaine & ▇▇▇▇▇, counsel to the Company, and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, Esq., Senior Vice President Law and Strategic Planning and General
Counsel of the Company, collectively to the effect set forth in Exhibit C. The
Company hereby requests such counsel to deliver such opinions.
(c) Citibank shall have received such documents and certificates as
Citibank or its counsel may reasonably request relating to the organization,
existence and good standing of the Company, the authorization of the
Transactions and any other legal matters relating to the Company, this Agreement
or the Transactions, all in form and substance satisfactory to the
Administrative Agents and their counsel.
(d) Citibank shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the
Company, confirming compliance with the conditions set forth in paragraphs (a)
and (b) of Section 4.2.
(e) The Administrative Agents shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Company hereunder.
Citibank shall notify the Company and the Lenders of the Effective Date, and
such notice shall be conclusive and binding.
SECTION 4.2 Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing (other than a Borrowing made solely to
refinance outstanding Borrowings that does not increase the aggregate principal
amount of the Loans of any Lender outstanding) is subject to the satisfaction of
the following conditions:
E-2-42
(a) The representations and warranties of the Company set forth in
this Agreement other than those set forth in Sections 3.5(b), 3.6(a), 3.10 and
3.11 shall be true and correct in all material respects (provided that such
representations and warranties qualified as to materiality shall be true and
correct) on and as of the date of such Borrowing with the same effect as though
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Company on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
SECTION 4.3 Initial Borrowing by Each Borrowing Subsidiary. The
obligation of each Lender to make a Loan on the occasion of the first Borrowing
by each Borrowing Subsidiary is subject to the satisfaction of the following
condition:
Citibank (or their counsel) shall have received a Borrowing Subsidiary
Agreement properly executed by such Borrowing Subsidiary and the Company.
ARTICLE V
Covenants
A. Affirmative Covenants. The Company covenants and agrees with each
Lender and each Administrative Agent that so long as this Agreement shall remain
in effect or the principal of or interest on any Loan, any fees or any other
amounts payable hereunder shall be unpaid, unless the Required Lenders shall
otherwise consent in writing, it will, and will cause each of the Subsidiaries
to:
SECTION 5.1 Existence. Do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and its
rights and franchises that are material to the business of the Company and its
Subsidiaries as a whole, except as expressly permitted under Section 5.7 and
except, in the case of any Subsidiary, where the failure to do so would not
result in a Material Adverse Effect.
SECTION 5.2 Business and Properties. Comply in all respects with all
applicable laws, rules, regulations and orders of any Governmental Authority
(including Environmental and Safety Laws and ERISA), whether now in effect or
hereafter enacted except instances that could not, in the aggregate, reasonably
be expected to result in a Material Adverse Effect; and at all times maintain
and preserve all property material to the conduct of the business of the Company
and its Subsidiaries as a whole and keep such property in good repair, working
order and condition and from time to time make, or cause to be made, all needful
and proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times, except where the failure to do so would not
result in a Material Adverse Effect.
E-2-43
SECTION 5.3 Financial Statements, Reports, Etc. Furnish to the
Administrative Agents and each Lender:
(a) within 95 days after the end of each fiscal year, its annual
report on Form 10-K as filed with the SEC, including its consolidated balance
sheet and the related consolidated earnings statement showing its consolidated
financial condition as of the close of such fiscal year and the consolidated
results of its operations during such year, all audited by Price Waterhouse LLP
or other independent certified public accountants of recognized national
standing selected by the Company and accompanied by an opinion of such
accountants to the effect that such consolidated financial statements fairly
present the Company's financial condition and results of operations on a
consolidated basis in accordance with GAAP;
(b) within 50 days after the end of each of the first three fiscal
quarters of each fiscal year, its quarterly report on Form 10-Q as filed with
the SEC, including its unaudited consolidated balance sheet and related
consolidated earnings statement, showing its consolidated financial condition as
of the close of such fiscal quarter and the consolidated results of its
operations during such fiscal quarter and the then elapsed portion of the fiscal
year (and each delivery of such statements shall be deemed a representation that
such statements fairly present the Company's financial condition and results of
operations on a consolidated basis in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of a Financial Officer certifying that
no Event of Default or Default has occurred or, if such an Event of Default or
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto;
(d) promptly after the same become publicly available, copies of all
reports on Form 8-K filed by it with the SEC, or any Governmental Authority
succeeding to any of or all the functions of the SEC, or copies of all reports
distributed to its shareholders, as the case may be; and
(e) promptly, from time to time, such other information as any Lender
shall reasonably request through Citibank.
SECTION 5.4 Insurance. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers (which may
include captive insurers), and maintain such other insurance or self insurance,
to such extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies similarly situated
and in the same or similar businesses.
E-2-44
SECTION 5.5 Obligations and Taxes. Pay and discharge promptly when
due all material taxes, assessments and governmental charges imposed upon it or
upon its income or profits or in respect of its property, in each case before
the same shall become delinquent or in default and before penalties accrue
thereon, unless and to the extent that the same are being contested in good
faith by appropriate proceedings and adequate reserves with respect thereto
shall, to the extent required by GAAP, have been set aside.
SECTION 5.6 Litigation and Other Notices. Give Citibank written
notice of the following within five Business Days after any executive officer of
the Company obtains knowledge thereof:
(a) the filing or commencement of any action, suit or proceeding which
the Company reasonably expects to result in a Material Adverse Effect;
(b) any Event of Default or Default, specifying the nature and extent
thereof and the action (if any) which is proposed to be taken with respect
thereto; and
(c) any change in any of the Ratings.
SECTION 5.7 Books and Records. Keep proper books of record and
account in which full, true and correct entries are made of all material
dealings and transactions in relation to its business and activities.
B. Negative Covenants. The Company covenants and agrees with each
Lender and each Administrative Agent that so long as this Agreement shall remain
in effect or the principal of or interest on any Loan, any fees or any other
amounts payable hereunder shall be unpaid, unless the Required Lenders shall
otherwise consent in writing, it will not, and will not permit any of the
Subsidiaries to:
SECTION 5.8 Consolidations, Mergers, and Sales of Assets. In the
case of the Company (a) consolidate or merge with or into any other Person or
liquidate, wind up or dissolve (or suffer any liquidation or dissolution) or (b)
sell, or otherwise transfer (in one transaction or a series of transactions), or
permit any Subsidiary to sell, or otherwise transfer (in one transaction or a
series of transactions), all or substantially all of the assets of the Company
and the Subsidiaries, taken as a whole, to any other Person; provided that the
Company may merge or consolidate with another Person if (A) the Company is the
corporation surviving such merger and (B) immediately after giving effect to
such merger or consolidation, no Default or Event of Default shall have occurred
and be continuing.
E-2-45
SECTION 5.9 Liens. Create, assume or suffer to exist any Lien upon
any Restricted Property to secure any Debt of the Company, any Subsidiary or any
other Person, without making effective provision whereby the Loans that may then
or thereafter be outstanding shall be secured by such Lien equally and ratably
with (or prior to) such Debt for so long as such Debt shall be so secured,
except that the foregoing shall not prevent the Company or any Subsidiary from
creating, assuming or suffering to exist any of the following Liens:
(a) Liens existing on the date hereof;
(b) any Lien existing on property owned or leased by any Person at the
time it becomes a Subsidiary;
(c) any Lien existing on property at the time of the acquisition
thereof by the Company or any Subsidiary;
(d) any Lien to secure any Debt incurred prior to, at the time of, or
within 12 months after the acquisition of any Restricted Property for the
purpose of financing all or any part of the purchase price thereof and any Lien
to the extent that it secures Debt which is in excess of such purchase price and
for the payment of which recourse may be had only against such Restricted
Property;
(e) any Lien to secure any Debt incurred prior to, at the time of, or
within 12 months after the completion of the construction, alteration, repair or
improvement of any Restricted Property for the purpose of financing all or any
part of the cost thereof and any Lien to the extent that it secures Debt which
is in excess of such cost and for the payment of which recourse may be had only
against such Restricted Property;
(f) any Liens securing Debt of a Subsidiary owing to the Company or to
another Subsidiary;
(g) any Liens securing industrial development, pollution control or
similar revenue bonds;
(h) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in clauses
(a) through (g) above, so long as the principal amount of the Debt secured
thereby does not exceed the principal amount of Debt so secured at the time of
such extension, renewal or replacement (except that, where an additional
principal amount of Debt is incurred to provide funds for the completion of a
specific project, the additional principal amount, and any related financing
costs, may be secured by the Lien as well) and such Lien is limited to the same
property subject to the Lien so extended, renewed or replaced (and improvements
on such property); and
E-2-46
(i) any Lien not permitted by clauses (a) through (h) above securing
Debt which, together with the aggregate outstanding principal amount of all
other Debt of the Company and its Subsidiaries owning Restricted Property which
would otherwise be subject to the foregoing restrictions and the aggregate Value
of existing Sale and Leaseback Transactions which would be subject to the
restrictions of Section 5.10 but for this clause (i), does not at any time
exceed 10% of Consolidated Net Tangible Assets.
SECTION 5.10 Limitation on Sale and Leaseback Transactions. Enter
into any Sale and Leaseback Transaction, or permit any Subsidiary owning
Restricted Property to do so, unless either:
(a) the Company or such Subsidiary would be entitled to incur Debt, in
a principal amount at least equal to the Value of such Sale and Leaseback
Transaction, which is secured by Liens on the property to be leased (without
equally and ratably securing the Loans) without violating Section 5.9, or
(b) the Company, during the six months immediately following the
effective date of such Sale and Leaseback Transaction, causes to be applied to
(A) the acquisition of Restricted Property or (B) the voluntary retirement of
Funded Debt (whether by redemption, defeasance, repurchase, or otherwise) an
amount equal to the Value of such Sale and Leaseback Transaction.
ARTICLE VI
Events of Default
In case of the happening of any of the following events (each an
"Event of Default"):
(a) any representation or warranty made or deemed made in or in
connection with the execution and delivery of this Agreement or the Borrowings
hereunder or under any Borrowing Subsidiary Agreement shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any fee or any other amount (other than an amount referred to in paragraph
(b) above) due hereunder, when and as the same shall become due and payable, and
such default shall continue unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Section 5.6, 5.8, 5.9 or 5.10;
E-2-47
(e) default shall be made in the due observance or performance of any
covenant, condition or agreement contained herein (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a period
of 30 days after notice thereof from any Administrative Agent or any Lender to
the Company;
(f) the Company or any Subsidiary shall (i) fail to pay any principal
or interest, regardless of amount, due in respect of one or more items of Debt
in an aggregate principal amount greater than or equal to 3% of Consolidated Net
Worth, when and as the same shall become due and payable (giving effect to any
applicable grace period), or (ii) fail to observe or perform any other term,
covenant, condition or agreement contained in any agreement or instrument
evidencing or governing any such Debt if the effect of any failure referred to
in this clause (ii) is to cause such Debt to become due prior to its stated
maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Company or any Borrowing Subsidiary, or of a substantial part
of the property or assets of the Company or any Borrowing Subsidiary, under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Borrowing Subsidiary or
for a substantial part of the property or assets of the Company or any Borrowing
Subsidiary or (iii) the winding up or liquidation of the Company or any
Borrowing Subsidiary; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(h) the Company or any Borrowing Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any Borrowing
Subsidiary or for a substantial part of the property or assets of the Company or
any Borrowing Subsidiary, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable, admit in writing
its inability or fail generally to pay its debts as they become due or (vii)
take any action for the purpose of effecting any of the foregoing; or
(i) one or more judgments for the payment of money in an aggregate
amount equal to or greater than 3% of Consolidated Net Worth (exclusive of any
amount thereof covered by insurance) shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Company or any Subsidiary to enforce any such
judgment;
E-2-48
(j) (i) a Plan of the Company or any Borrowing Subsidiary shall fail
to maintain the minimum funding standard required by Section 412 of the Code for
any plan year or a waiver of such standard is sought or granted under Section
412(d), or (ii) an ERISA Termination Event shall have occurred with respect to
the Company or any Borrowing Subsidiary or an ERISA Affiliate has incurred or is
reasonably likely to incur a liability to or on account of a Plan under Section
4062, 4063, 4064, 4201 or 4204 of ERISA, or (iii) the Company or any Borrowing
Subsidiary or any ERISA Affiliate shall engage in any prohibited transaction
described in Sections 406 of ERISA or 4975 of the Code for which a statutory or
class exemption is not available or a private exemption has not been previously
obtained from the United States Department of Labor, or (iv) the Company or any
Borrowing Subsidiary or any ERISA Affiliate shall fail to pay any required
installment or any other payment required to be paid by such entity under
Section 412 of the Code on or before the due date for such installment or other
payment, or (v) the Company or any Borrowing Subsidiary or any ERISA Affiliate
shall fail to make any contribution or payment to any Multiemployer Plan (as
defined in Section 4001(a)(3) of ERISA) which the Company or any Borrowing
Subsidiary or any ERISA Affiliate is required to make under any agreement
relating to such Multiemployer Plan or any law pertaining thereto, and there
shall result from any such event or events either a liability or a material risk
of incurring a liability to the PBGC or a Plan which will have a Material
Adverse Effect;
(k) a Change in Control shall occur; or
(l) at any time while a Borrowing Subsidiary Agreement is in effect,
the guarantee in Section 8.16 shall cease to be, or shall be asserted by the
Company not to be, a valid and binding obligation on the part of the Company;
then, and in every such event (other than an event with respect to the Company
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, Citibank, at the request of the Required Lenders,
shall, by notice to the Company or any Borrowing Subsidiary (which notice to a
Borrowing Subsidiary may be given to the Company), take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued fees and all other liabilities of the Company or any Borrowing
Subsidiary accrued hereunder, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived anything contained herein to the contrary
notwithstanding; and, in any event with respect to the Company described in
paragraph (g) or (h) above, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest
thereon and any unpaid accrued fees and all other liabilities of the Company and
the Borrowing Subsidiaries accrued hereunder shall automatically become due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived anything contained herein to the
contrary notwithstanding.
E-2-49
ARTICLE VII
The Administrative Agents
In order to expedite the transactions contemplated by this Agreement,
each of The Chase Manhattan Bank and Citibank, N.A. is hereby appointed to act
as an Administrative Agent on behalf of the Lenders and Citibank is hereby
appointed to act as Advance Agent on behalf of the Lenders. Each of the Lenders
hereby irrevocably authorizes each Administrative Agent (which term, for
purposes of this Article VII, shall be deemed to include the Advance Agent) to
take such actions on behalf of such Lender or holder and to exercise such powers
as are specifically delegated to the Administrative Agents or an Administrative
Agent individually, as the case may be, by the terms and provisions hereof,
together with such actions and powers as are reasonably incidental thereto.
Citibank is hereby expressly authorized by the Lenders, without hereby limiting
any implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other amounts due to the Lenders
hereunder, and promptly to distribute to each Lender its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders to the
Company or any Borrowing Subsidiary of any Event of Default of which Citibank
has actual knowledge acquired in connection with its agency hereunder; and (c)
to distribute to each Lender copies of all notices, financial statements and
other materials delivered by the Company or any Borrowing Subsidiary pursuant to
this Agreement as received by Citibank.
Neither Administrative Agent nor any of their respective directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his or her own gross negligence or
willful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection
herewith, or be required to ascertain or to make any inquiry concerning the
performance or observance by the Company or any Borrowing Subsidiary of any of
the terms, conditions, covenants or agreements contained in this Agreement. The
Administrative Agents shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Administrative Agents may
deem and treat the Lender which makes any Loan as the holder of the indebtedness
resulting therefrom for all purposes hereof until it shall have received notice
from such Lender, given as provided herein, of the transfer thereof. The
Administrative Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. The Administrative Agents shall, in the absence of knowledge to
the contrary, be entitled to rely on any instrument or document believed by it
in good faith to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Neither Administrative Agent nor any of their
respective directors, officers, employees or agents shall have any
responsibility to the Company or any Borrowing Subsidiary on account of the
failure of or delay in performance or breach by any Lender of any of its
obligations hereunder or to any Lender on account of the failure of or delay in
performance or breach by any other Lender or the Company of any of their
E-2-50
respective obligations hereunder or in connection herewith. The Administrative
Agents may execute any and all duties hereunder by or through their Affiliates,
agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by them with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by them in
accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agents shall be
under no duty to take any discretionary action permitted to be taken by them
pursuant to the provisions of this Agreement unless they shall be requested in
writing to do so by the Required Lenders.
Subject, in the case of a resignation of both Administrative Agents,
to the appointment and acceptance of a successor Administrative Agent as
provided below, either Administrative Agent may resign at any time by notifying
the Lenders and the Company. Upon any such resignation of both Administrative
Agents, the Required Lenders shall have the right to appoint a successor
Administrative Agent acceptable to the Company. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agents give notice of their
resignation, then the retiring Administrative Agents may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agents and the retiring
Administrative Agents shall be discharged from their duties and obligations
hereunder. If only one of the Administrative Agents shall resign, the other
Administrative Agent shall become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After any
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 8.5 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by them hereunder, each Administrative
Agent in its individual capacity and not as Administrative Agent shall have the
same rights and powers as any other Lender and may exercise the same as though
it were not an Administrative Agent, and such Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Company or any Subsidiary or other Affiliate thereof
as if it were not an Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agents, on
demand, in the amount of its Applicable Percentage of any expenses incurred for
the benefit of the Lenders by the Administrative Agents, including counsel fees
and compensation of agents and employees paid for services rendered on behalf of
the Lenders, which shall not have been reimbursed by the Company and (ii) to
indemnify and hold harmless the Administrative Agents and any of their
E-2-51
respective directors, officers, employees or agents, on demand, in the amount of
such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against either of them in its capacity as an
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by either of them under this Agreement to the extent
the same shall not have been reimbursed by the Company; provided that no Lender
shall be liable to any Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of such Administrative Agent or any of its directors, officers,
employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon any Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
or any related agreement or any document furnished hereunder or thereunder.
ARTICLE VII
Miscellaneous
SECTION 8.1 Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy, as follows:
(a) if to the Company, to ▇▇▇▇▇▇▇-▇▇▇▇▇ Squibb Company, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of the Treasurer (Telecopy No.
212-605-9632) and the General Counsel (Telecopy No. 212-546-9562);
(b) if to The Chase Manhattan Bank, to it at One Chase ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telecopy
No. 212-552-5662);
(c) if to Citibank, (i) for notices concerning operational matters, to
Citibank, N.A.,c/o Citibank Delaware, ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇) or (ii) for
notices concerning credit matters, to Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Telecopy No. 212-826-2371);
(d) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.1 or in the Assignment and Acceptance pursuant to which such
Lender became a party hereto; and
E-2-52
(e) if to any Borrowing Subsidiary, to it at the address (or telecopy
number) set forth above for the Company. Each Borrowing Subsidiary hereby
irrevocably appoints the Company as its agent for the purpose of giving on its
behalf any notice and taking any other action provided for in this Agreement and
hereby agrees that it shall be bound by any such notice or action given or taken
by the Company hereunder irrespective of whether or not any such notice shall
have in fact been authorized by such Borrowing Subsidiary and irrespective of
whether or not the agency provided for herein shall have theretofore been
terminated.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this
Section.
SECTION 8.2 Survival of Agreement. All covenants, agreements,
representations and warranties made by the Company herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans regardless of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding
and unpaid or the Commitments have not been terminated.
SECTION 8.3 Binding Effect. This Agreement shall become effective
when it shall have been executed by the Company and the Administrative Agents
and when the Administrative Agents shall have received copies hereof (telecopied
or otherwise) which, when taken together, bear the signature of each Lender, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither the Company nor
any Borrowing Subsidiary shall have the right to assign any rights hereunder or
any interest herein without the prior consent of all the Lenders.
SECTION 8.4 Successors and Assigns. (a) Whenever in this Agreement
any of the parties is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any party that are contained in this Agreement shall bind and
inure to the benefit of its successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it); provided,
however, that, except in the case of an assignment to another Lender or an
Affiliate of a Lender, (i) each of the Company (so long as no Event of Default
shall have occurred and be continuing with respect to the Company under clause
(g) or (h) of Article VI of this Agreement) and Citibank must give its prior
written consent to such assignment (which consent in each case shall not be
unreasonably withheld) and (ii) the amount of the Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to Citibank) shall
E-2-53
not be less than $10,000,000 unless it shall be the entire amount of such
Lender's Commitment. The parties to each assignment shall execute and deliver
to Citibank an Assignment and Acceptance, and a processing and recordation fee
of $3,000. Upon acceptance and recording pursuant to paragraph (e) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof, (X) the assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and (Y) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto (but shall continue to be entitled
to the benefits of Sections 2.15, 2.16, 2.17 and 8.5, as well as to any fees
accrued for its account hereunder and not yet paid)). Notwithstanding the
foregoing, any Lender assigning its rights and obligations under this Agreement
may retain any Competitive Loans made by it outstanding at such time, and in
such case shall retain its rights hereunder in respect of any Loans so retained
until such Loans have been repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim; (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Company or the performance or
observance by the Company of any obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.3 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon any Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agents to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agents by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
▇-▇-▇▇
(▇) ▇▇▇▇▇▇▇▇ shall maintain at one of its offices in the City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and the principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time and any promissory notes evidencing such Loans
(the "Register"). The entries in the Register shall be conclusive in the
absence of manifest error and the Company, the other Borrowers, the
Administrative Agents and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement. No assignment or transfer of any Loan (or
portion thereof) or any Note evidencing such Loan shall be effected unless and
until it has been recorded in the Register as provided in this subsection
8.4(d). Notwithstanding any other provision of this Agreement, any assignment
or transfer of all or part of a promissory note shall be registered on the
Register only upon surrender for registration of assignment or transfer of the
promissory note (and each promissory note shall expressly so provide),
accompanied by a duly executed Assignment and Acceptance, and thereupon one or
more new promissory notes in the same aggregate principal amount shall be issued
to the designated Assignee and the old promissory notes shall be returned by
Citibank to the Borrower marked "cancelled". The Register shall be available
for inspection by each party hereto, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee together with an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent of the Company to
such assignment, Citibank shall (i) accept such Assignment and Acceptance and
(ii) record the information contained therein in the Register.
(f) Each Lender may sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto or thereto for the performance of such obligations, (iii) each
participating bank or other entity shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.15, 2.16 and 2.17 to the same
extent as if it was the selling Lender (and limited to the amount that could
have been claimed by the selling Lender had it continued to hold the interest of
such participating bank or other entity, it being further agreed that the
selling Lender will not be permitted to make claims against the Company under
Section 2.15(b) for costs or reductions resulting from the sale of a
participation), except that all claims made pursuant to such Sections shall be
made through such selling Lender, and (iv) the Company, the Administrative
Agents and the other Lenders shall continue to deal solely and directly with
such selling Lender in connection with such Lender's rights and obligations
under this Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Company relating to the Loans and to approve any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
thereunder or the amount of principal of or the rate at which interest is
payable on the Loans, extending the final scheduled maturity of the Loans or any
date scheduled for the payment of interest on the Loans or extending the
Commitments).
E-2-55
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Company furnished to such Lender;
provided that, prior to any such disclosure, each such assignee or participant
or proposed assignee or participant shall be subject to the same confidentiality
agreement as are the Lenders.
(h) The Company and any Borrowing Subsidiary shall not assign or
delegate any rights and duties hereunder without the prior written consent of
all Lenders.
(i) Any Lender may at any time pledge or otherwise assign all or any
portion of its rights under this Agreement to a Federal Reserve Bank; provided
that no such pledge shall release any Lender from its obligations hereunder.
In order to facilitate such an assignment to a Federal Reserve Bank, the Company
shall, at the request of the assigning Lender, duly execute and deliver to the
assigning Lender a promissory note or notes evidencing the Loans made by the
assigning Lender hereunder.
SECTION 8.5 Expenses; Indemnity. (a) The Company agrees to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agents in
connection with entering into this Agreement or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(including the reasonable fees, disbursements and other charges of a single
counsel), or incurred by the Administrative Agents or any Lender in connection
with the enforcement of their rights in connection with this Agreement or in
connection with the Loans made hereunder or thereunder, including the fees and
disbursements of counsel for the Administrative Agents and, in the case of
enforcement, each Lender.
(b) The Company agrees to indemnify each Administrative Agent, each
Lender, each of their Affiliates and the directors, officers, employees and
agents of the foregoing (each such Person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against any Indemnitee arising out of (i) the
consummation of the transactions contemplated by this Agreement, (ii) the use of
the proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto; provided that (A) such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a final judgment of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnitee and (B) such indemnity shall not apply to losses, claims,
damages, liabilities or related expenses that result from disputes solely
between Lenders.
(c) The provisions of this Section shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any investigation made by or on behalf of any Administrative Agent
or any Lender. All amounts due under this Section shall be payable on written
demand therefor.
E-2-56
SECTION 8.6 Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.7 Waivers; Amendment. (a) No failure or delay of any
Administrative Agent or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agents and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the
Company or any Subsidiary in any case shall entitle such party to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Required Lenders; provided, however, that no
such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, or amend or modify
Section 8.16, without the prior written consent of each Lender directly affected
thereby, (ii) increase the Commitment (except pursuant to Section 2.6), or
decrease the facility fees of any Lender without the prior written consent of
such Lender or (iii) amend or modify the provisions of Section 2.18 or Section
8.4(h), the provisions of this Section or the definition of the "Required
Lenders", without the prior written consent of each Lender; provided further,
however, that no such agreement shall amend, modify or otherwise affect the
rights or duties of any Administrative Agent hereunder without the prior written
consent of such Administrative Agent. Each Lender shall be bound by any waiver,
amendment or modification authorized by this Section and any consent by any
Lender pursuant to this Section shall bind any assignee of its rights and
interests hereunder.
SECTION 8.8 Entire Agreement. This Agreement constitutes the entire
contract among the parties relative to the subject matter hereof. Any previous
agreement among the parties with respect to the subject matter hereof is
superseded by this Agreement. Nothing in this Agreement, expressed or implied,
is intended to confer upon any party other than the parties hereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 8.9 Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
E-2-57
SECTION 8.10 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 8.3.
SECTION 8.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 8.12 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or obligations of the Company and the applicable Borrowing
Subsidiary now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Company after such setoff and application made by such
Lender, but the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Lender under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of setoff) which such Lender may have.
SECTION 8.13 Jurisdiction; Consent to Service of Process. (a) The
Company and any Borrowing Subsidiary hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Subject to the foregoing and to paragraph (b) below, nothing
in this Agreement shall affect any right that any party hereto may otherwise
have to bring any action or proceeding relating to this Agreement against any
other party hereto in the courts of any jurisdiction.
(b) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or thereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
E-2-58
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 8.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 8.14 Waiver of Jury Trial. Each party hereto hereby waives,
to the fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement. Each party hereto (a) certifies
that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
and other parties hereto have been induced to enter into this Agreement by,
among other things, the mutual waivers and certification in this Section.
SECTION 8.15 Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of each Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 8.15 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 8.16 Guaranty. In order to induce the Lenders to make Loans
to the applicable Borrowing Subsidiaries, the Company hereby unconditionally
guarantees the Borrowing Subsidiary Obligations of all the Borrowing
Subsidiaries. The Company further agrees that the Borrowing Subsidiary
Obligations may be extended and renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its agreement
hereunder notwithstanding any extension or renewal of any Borrowing Subsidiary
Obligation.
The Company waives promptness, diligence, presentment to, demand of
payment from and protest to the Borrowing Subsidiaries of any Borrowing
Subsidiary Obligations, and also waives notice of acceptance of its obligations
and notice of protest for nonpayment. The obligations of the Company hereunder
shall be absolute and unconditional and not be affected by (a) the failure of
any Lender or the Administrative Agents to assert any claim or demand or to
enforce any right or remedy against the Borrowing Subsidiaries under the
provisions of this Agreement or any of the other Loan Documents or otherwise;
E-2-59
(b) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Agreement, any other Loan Documents or any other agreement;
(c) the failure of any Lender to exercise any right or remedy against any
Borrowing Subsidiaries; (d) the invalidity or unenforceability of any Loan
Document or (e) any other circumstance which might otherwise constitute a
defense available to or discharge of the Borrower or a guarantor (other than
payment).
The Company further agrees that its agreement hereunder constitutes a
promise of payment when due and not of collection, and waives any right to
require that any resort be had by any Lender to any balance of any deposit
account or credit on the books of any Lender in favor of any Borrowing
Subsidiary or any other Person.
The obligations of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, and shall not
be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of the
Borrowing Subsidiary Obligations or otherwise. Without limiting the generality
of the foregoing, the obligations of the Company hereunder shall not be
discharged or impaired or otherwise affected by the failure of the
Administrative Agents or any Lender to assert any claim or demand or to enforce
any remedy under this Agreement or under any other Loan Document or any other
agreement, by any waiver or modification in respect of any thereof, by any
default, failure or delay, wilful or otherwise, in the performance of the
Borrowing Subsidiary Obligations, or by any other act or omission which may or
might in any manner or to any extent vary the risk of the Company or otherwise
operate as a discharge of the Company as a matter of law or equity.
The Company further agrees that its obligations hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Borrowing
Subsidiary Obligation is rescinded or must otherwise be restored by the
Administrative Agents or any Lender upon the bankruptcy or reorganization of any
of the Borrowing Subsidiaries or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which the Administrative Agents or any Lender may have at law or in equity
against the Company by virtue hereof, upon the failure of any Borrowing
Subsidiary to pay any Borrowing Subsidiary Obligation when and as the same shall
become due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Company hereby promises to and will, upon receipt of written
demand by Citibank, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Borrowing Subsidiary Obligation. In the event that, by reason of
the bankruptcy of any Borrowing Subsidiary, (i) acceleration of Loans made to
such Borrowing Subsidiary is prevented and (ii) the Company shall not have
prepaid the outstanding Loans and other amounts due hereunder owed by such
Borrowing Subsidiary, the Company will forthwith purchase such Loans at a price
equal to the principal amount thereof plus accrued interest thereon and any
other amounts due hereunder with respect thereto. The Company further agrees
that if payment in respect of any Borrowing Subsidiary Obligation shall be due
in a currency other than Dollars and/or at a place of payment other than New
York and if, by reason of any Change in Law, disruption of currency or foreign
E-2-60
exchange markets, war or civil disturbance or similar event, payment of such
Borrowing Subsidiary Obligation in such currency or such place of payment shall
be impossible or, in the judgment of any applicable Lender, not consistent with
the protection of its rights or interests, then, at the election of any
applicable Lender, the Company shall make payment of such Borrowing Subsidiary
Obligation in Dollars (based upon the applicable Exchange Rate in effect on the
date of payment) and/or in New York, and shall indemnify such Lender against any
losses or expenses that it shall sustain as a result of such alternative
payment.
Upon payment by the Company of any Borrowing Subsidiary Obligations,
each Lender shall, in a reasonable manner, assign the amount of the Borrowing
Subsidiary Obligations owed to it and paid by the Company pursuant to this
guarantee to the Company, such assignment to be pro tanto to the extent to which
the Borrowing Subsidiary Obligations in question were discharged by the Company,
or make such disposition thereof as the Company shall direct (all without
recourse to any Lender and without any representation or warranty by any Lender
except with respect to the amount of the Borrowing Subsidiary Obligations so
assigned).
Upon payment by the Company of any sums as provided above, all rights
of the Company against any Borrowing Subsidiary arising as a result thereof by
way of right of subrogation or otherwise shall in all respects be subordinated
and junior in right of payment to the prior indefeasible payment in full of all
the Borrowing Subsidiary Obligations to the Lenders.
SECTION 8.17 European Monetary Union. If, as a result of the
implementation of European monetary union, (a) any currency ceases to be lawful
currency of the nation issuing the same and is replaced by a European common
currency, then any amount payable hereunder by any party hereto in such currency
shall instead be payable in the European common currency and the amount so
payable shall be determined by translating the amount payable in such currency
to such European common currency at the exchange rate recognized by the European
Central Bank for the purpose of implementing European monetary union, or (b) any
currency and a European common currency are at the same time recognized by the
central bank or comparable authority of the nation issuing such currency as
lawful currency of such nation, then (i) any Loan made at such time shall be
made in such European common currency and (ii) any other amount payable by any
party hereto in such currency shall be payable in such currency or in such
European common currency (in an amount determined as set forth in clause (a)),
at the election of the obligor. Prior to the occurrence of the event or events
described in clause (a) or (b) of the preceding sentence, each amount payable
hereunder in any currency will continue to be payable only in that currency.
The Borrowers agree, at the request of the Required Lenders, at the time of or
at any time following the implementation of European monetary union, to enter
into an agreement amending this Agreement in such manner as the Required Lenders
shall reasonably request in order to avoid any unfair burden or disadvantage
resulting from the implementation of such monetary union and to place the
parties hereto in the position they would have been in had such monetary union
not been implemented, the intent being that neither party will be adversely
affected economically as a result of such implementation and that reasonable
provisions shall be adopted to govern the borrowing, maintenance and repayment
of Loans denominated in currencies other than Dollars after the occurrence of
the event or events described in clause (a) or (b) of the preceding sentence.
E-2-61
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.
▇▇▇▇▇▇▇-▇▇▇▇▇ SQUIBB COMPANY,
By
Name:
Title:
By
Name:
Title:
THE CHASE MANHATTAN BANK, individually and
as Administrative Agent,
By
Name:
Title:
CITIBANK, N.A., individually and as Administrative
Agent and Advance Agent,
By
Name:
Title:
E-2-62
SWISS BANK CORPORATION, Stamford branch, as a Lender
By: Title:
By: Title:
DRESDNER BANK AG, New York Branch and Grand Cayman Branch, as a Lender
By: Title:
By: Title:
BANCA MONTE DEI PASCHI DI SIENA S.p.A., as a Lender
By: Title:
BANCO SANTANDER S.A., New York branch, as a Lender
By: Title:
By: Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as a Lender
By: Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a Lender
By: Title:
▇-▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ PARIS, as a Lender
By: Title:
By: Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, as a Lender
By: Title:
ROYAL BANK OF CANADA, as a Lender
By: Title:
THE BANK OF NEW YORK, as a Lender
By: Title:
THE NORTHERN TRUST COMPANY, as a Lender
By: Title:
DEUTSCHE BANK AG, New York branch and/or Cayman Islands branch, as a Lender
By: Title:
By: Title:
E-2-64
WACHOVIA BANK, N.A., as a Lender
By: Title:
BANK OF MONTREAL, as a Lender
By: Title:
ING BANK N.V., as a Lender
By: Title:
E-2-65