$1,000,000,000
CREDIT AGREEMENT
among
AMERICAN HOME PRODUCTS CORPORATION,
THE LENDERS PARTIES HERETO
and
CHEMICAL BANK,
as Agent
Dated as of April 29, 1993
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. ............................. 1
1.1 Defined Terms.............................. 1
1.2 Other Definitional Provisions.............. 14
SECTION 2. THE COMMITTED RATE LOANS; THE BID LOANS;
AMOUNT AND TERMS......................... 14
2.1 The Committed Rate Loans................... 14
2.2 The Bid Loans.............................. 15
2.3 Denomination of Committed Rate Loans....... 19
2.4 Fees....................................... 19
2.5 Changes of Commitments..................... 20
2.6 Optional Prepayments....................... 20
2.7 Minimum Principal Amount of Tranches and
Maximum Number of Tranches................ 20
2.8 Committed Rate Loan Interest Rates and
Payment Dates............................. 20
2.9 Conversion Options..........................21
2.10 Computation of Interest and Fees........... 22
2.11 Pro Rata Treatment and Payments............ 23
2.12 Non-Receipt of Funds by the Agent.......... 24
2.13 Inability to Determine Interest Rate....... 25
2.14 Illegality................................. 26
2.15 Requirements of Law........................ 26
2.16 Indemnity.................................. 29
2.17 Taxes.......................................29
2.18 Extension of Termination Date, Replacement
of Exiting Lender......................... 31
SECTION 3. REPRESENTATIONS AND WARRANTIES............. 32
3.1 Financial Condition........................ 32
3.2 No Change.................................. 32
3.3 Corporate Existence; Compliance with Law... 32
3.4 Corporate Power; Authorization; Enforceable
Obligations............................... 33
3.5 No Legal Bar; No Default................... 33
3.6 No Material Litigation..................... 33
3.7 Investment Company Act..................... 34
3.8 Federal Regulations ....................... 34
3.9 ERISA...................................... 34
3.10 Environmental Matters...................... 34
3.11 Purpose of Loans........................... 35
SECTION 4. CONDITIONS PRECEDENT........................36
4.1 Conditions to Initial Loans................ 36
4.2 Conditions to All Loans.................... 36
4.3 Conditions to All Committed Rate Loans..... 38
SECTION 5. AFFIRMATIVE COVENANTS...................... 38
5.1 Financial Statements....................... 38
5.2 Certificates; Other Information............ 39
5.3 Payment of Obligations..................... 39
5.4 Conduct of Business and Maintenance of
Existence................................. 39
5.5 Maintenance of Property; Insurance......... 40
5.6 Inspection of Property; Books and Records;
Discussions............................... 40
5.7 Notices.................................... 40
5.8 Environmental Laws......................... 41
SECTION 6. EVENTS OF DEFAULT.......................... 42
SECTION 7. THE AGENT.................................. 45
7.1 Appointment................................ 45
7.2 Delegation of Duties....................... 45
7.3 Exculpatory Provisions..................... 45
7.4 Reliance by Agent.......................... 46
7.5 Notice of Default.......................... 46
7.6 Non-Reliance on Agent, Other Lenders and
CBASC..................................... 47
7.7 Indemnification............................ 47
7.8 Agent in Its Individual Capacity........... 48
7.9 Successor Agent............................ 48
SECTION 8. MISCELLANEOUS.............................. 48
8.1 Amendments and Waivers..................... 48
8.2 Removal of a Lender by the Borrower........ 49
8.3 Notices.................................... 49
8.4 No Waiver; Cumulative Remedies............. 50
8.5 Survival of Representations and Warranties. 50
8.6 Payment of Expenses and Taxes.............. 50
8.7 Successors and Assigns; Participations;
Purchasing Lenders.........................51
8.8 Adjustments; Set-off....................... 55
8.9 Table of Contents and Section Headings..... 56
8.10 Counterparts............................... 56
8.11 Severability............................... 57
8.12 Integration.................................57
8.13 Governing Law...............................57
8.14 Consent to Jurisdiction and Service of
Process; Waivers.......................... 57
8.15 Confidentiality............................ 58
8.16 Acknowledgements........................... 58
8.17 Waivers of Jury Trial...................... 59
PAGE
EXHIBITS
Exhibit A Form of Committed Rate Note
Exhibit B Form of Grid Bid Loan Note
Exhibit C Form of Individual Bid Loan Note
Exhibit D Form of Borrowing Notice
Exhibit E Form of Bid Loan Request
Exhibit F-1 Form of Bid Loan Offer - Absolute Bid Loans
Exhibit F-2 Form of Bid Loan Offer - Index Rate Bid Loans
Exhibit G Form of Bid Loan Confirmation
Exhibit H Form of Bid Loan Assignment
Exhibit I Form of Commitment Transfer Supplement
Exhibit J Form of Certificate of Secretary of the Borrower
Exhibit K Form of Opinion of Counsel to the Borrower
Exhibit L Form of Acknowledgment and Release (subsection
2.15(d))
Exhibit M Form of Acknowledgment and Release (subsection
2.18)
Exhibit N Form of Acknowledgment and Release (subsection 8.2)
SCHEDULES
Schedule 3.6 Material Litigation
PAGE
CREDIT AGREEMENT, dated as of April 29, 1993, among AMERICAN
HOME PRODUCTS CORPORATION, a Delaware corporation
(the "Borrower"), the several banks and other financial
institutions from time to time parties to this Agreement
(collectively, the "Lenders"; individually, a "Lender") and
CHEMICAL BANK, a New York banking corporation, as agent for the
Lenders hereunder (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower has requested the Lenders to make
loans to it in an amount up to $1,000,000,000 as more
particularly described herein;
WHEREAS, the Lenders are willing to make such loans on the
terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto hereby
agree as follows:
SECTION 1: DEFINITIONS
1.1 Defined Terms. As used in this Agreement, terms
defined in the preamble to this Agreement have the meanings
therein indicated, and the following terms have the following
meanings:
"Absolute Rate Bid Loan Request": any Bid Loan Request
requesting the Bid Loan Lenders to offer to make Bid Loans at an
absolute rate (as opposed to a rate composed of the Applicable
Index Rate plus (or minus) a margin).
"Affiliate": as to any Person, any other Person (other than
a Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, a Person shall be deemed to be
"controlled by" a Person if such Person possesses, directly or
indirectly, power either (a) to vote 10% or more of the
securities having ordinary voting power for the election of
directors of such Person or (b) to direct or cause the direction
of the management and policies of such Person whether by contract
or otherwise.
"Aggregate Loans": at a particular time, the sum of the
then aggregate outstanding principal amount of Committed Rate
Loans and Bid Loans.
"Agreement": this Credit Agreement, as amended,
supplemented or modified from time to time in accordance with its
terms.
"Alternate Base Rate": for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the
Base CD Rate in effect on such day plus 1% and (c) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest
per annum publicly announced from time to time by Chemical as its
prime rate in effect at its principal office in New York City
(each change in the Prime Rate to be effective on the date such
change is publicly announced); "Base CD Rate" shall mean the sum
of (a) the product of (i) the Three-Month Secondary CD Rate and
(ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage and
(b) the C/D Assessment Rate; "Three-Month Secondary CD Rate"
shall mean, for any day, the secondary market rate for three-
month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the immediately
preceding Business Day) by the Board of Governors of the Federal
Reserve System (the "Board") through the public information
telephone line of the Federal Reserve Bank of New York (which
rate will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on
such day or such immediately preceding Business Day, the average
of the secondary market quotations for three-month certificates
of deposit of major money center banks in New York City received
at approximately 10:00 A.M., New York City time, on such day,
(or, if such day shall not be a Business Day, on the immediately
preceding Business Day) by the Agent from three New York City
negotiable certificate of deposit dealers of recognized standing
selected by it; and "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 published on the
next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published on the next succeeding
Business Day, the average of the quotations for the day of such
transactions received by the Agent from three federal funds
brokers of recognized standing selected by it. If for any reason
the Agent shall have determined (which determination shall be
conclusive in the absence of manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate,
or both, for any reason, including the inability or failure of
the Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective
Rate shall be effective on the opening of business on the date of
such change.
"Alternate Base Rate Loans": Committed Rate Loans that bear
interest at an interest rate based on the Alternate Base Rate.
"Applicable Index Rate": in respect of any Bid Loan
requested pursuant to an Index Rate Bid Loan Request, the
Eurodollar Rate applicable to the Interest Period for such Bid
Loan.
"Applicable Margin": the Applicable Margin shall be the
rate per annum set forth below for each Type of Loan:
Alternate
Eurodollar C/D Base Rate
Loans Rate Loans Loans
.125% .250% 0%
"Bid Loan": each Bid Loan made pursuant to subsection 2.2;
the aggregate amount advanced by a Bid Loan Lender pursuant to
subsection 2.2 on each Bid Loan Date shall constitute one or more
Bid Loans, as specified by such Bid Loan Lender pursuant to
subsection 2.2(b)(viii).
"Bid Loan Assignees": as defined in subsection 8.7(c).
"Bid Loan Assignment": a Bid Loan Assignment, substantially
in the form of Exhibit H.
"Bid Loan Confirmation": each confirmation by the Borrower
of its acceptance of Bid Loan Offers, which Bid Loan Confirmation
shall be substantially in the form of Exhibit G and shall be
delivered to the Agent by facsimile transmission.
"Bid Loan Date": in respect of a Bid Loan, the day on which
a Bid Loan Lender makes such Bid Loan pursuant to subsection 2.2.
"Bid Loan Lenders": Lenders from time to time designated as
Bid Loan Lenders by the Borrower by written notice to the Agent
(which notice the Agent shall transmit to each such Bid Loan
Lender).
"Bid Loan Offer": each offer by a Bid Loan Lender to make
Bid Loans pursuant to a Bid Loan Request, which Bid Loan Offer
shall contain the information specified in Exhibit F-1, in the
case of an Absolute Rate Bid Loan Request, or F-2, in the case of
an Index Rate Bid Loan Request, and shall be delivered to the
Agent by facsimile transmission or by telephone immediately
confirmed by facsimile transmission.
"Bid Loan Request": each request by the Borrower for Bid
Loan Lenders to submit bids to make Bid Loans, which shall
contain the information in respect of such requested Bid Loans
specified in Exhibit E and shall be delivered to the Agent by
facsimile transmission or by telephone immediately confirmed by
facsimile transmission.
"Bid Notes": the collective reference to the Grid Bid Loan
Notes and the Individual Bid Loan Notes; individually, a "Bid
Note".
"Borrowing Date": in respect of any Committed Rate Loan,
the date such Committed Rate Loan is made.
"Business": as defined in subsection 3.10.
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York are
authorized or required by law to close; provided, however, that
when used in connection with a rate determination, borrowing or
payment in respect of a Eurodollar Loan or an Index Rate Bid
Loan, the term "Business Day" shall also exclude any day on which
commercial banks are not open for dealings in Dollar deposits in
the London interbank market.
"CBASC": Chemical Bank Agency Services Corporation.
"C/D Assessment Rate": for any day, the net annual
assessment rate (rounded upward to the nearest 1/100th of 1%)
determined by Chemical to be payable on such day to the Federal
Deposit Insurance Corporation or any successor ("FDIC") for
FDIC's insuring time deposits made in Dollars at offices of
Chemical in the United States.
"C/D Base Rate": with respect to each day during each
Interest Period pertaining to a C/D Rate Loan, the rate of
interest per annum determined by the Agent to be the arithmetic
average (rounded upward to the nearest 1/16th of 1%) of the
respective rates notified to the Agent by each of the Reference
Lenders as the average rate bid at 9:00 A.M., New York City time,
or as soon thereafter as practicable, on the first day of such
Interest Period by a total of three certificate of deposit
dealers of recognized standing selected by such Reference Lender
for the purchase at face value from such Reference Lender of its
certificates of deposit in an amount comparable to the C/D Rate
Loan of such Reference Lender to which such Interest Period
applies and having a maturity comparable to such Interest Period.
"C/D Rate": with respect to each day during each Interest
Period pertaining to a C/D Rate Loan, a rate per annum determined
for such day in accordance with the following formula (rounded
upward to the nearest 1/100th of 1%):
C/D Base Rate + C/D Assessment Rate
1.00 - C/D Reserve Percentage
"C/D Rate Loans": Committed Rate Loans that bear interest
at an interest rate based on the C/D Rate.
"C/D Reserve Percentage": for any day as applied to any C/D
Rate Loan, that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board of Governors of
the Federal Reserve System (or any successor), for determining
the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding one
billion Dollars in respect of new non-personal time deposits in
Dollars in New York City having a maturity comparable to the
Interest Period for such C/D Rate Loan and in an amount of
$100,000 or more.
"Chemical": Chemical Bank.
"Closing Date": the date on which each of the conditions
specified in subsection 4.1 are satisfied in full or waived in
accordance with this Agreement.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Lender, the obligation of such
Lender to make Committed Rate Loans to the Borrower hereunder in
an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on the
signature pages hereof, as such amount may from time to time be
reduced in accordance with this Agreement; collectively, as to
all the Lenders, the "Commitments".
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments
shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender's Loans then
outstanding constitutes of the aggregate principal amount of the
Loans then outstanding).
"Commitment Period": the period from and including the
Closing Date to but not including the Termination Date or such
earlier date on which the Commitments shall terminate as provided
herein.
"Commitment Transfer Supplement": a Commitment Transfer
Supplement, substantially in the form of Exhibit I.
"Committed Rate Loans": Loans made pursuant to subsection
2.1.
"Committed Rate Note": as defined in subsection 2.1(c);
collectively, the "Committed Rate Notes".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower
within the meaning of Section 4001 of ERISA or is part of a group
which includes the Borrower and which is treated as a single
employer under Section 414 of the Code.
"Contractual Obligation": as to any Person, any provision
of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by
which it or any of its property is bound.
"Default": any of the events specified in Section 6,
whether or not any requirement for the giving of notice or the
lapse of time, or both, or any other condition, has been
satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Lending Office": initially, the office of each
Lender designated as such Lender's Domestic Lending Office under
such Lender's name on the signature pages hereof; thereafter,
such other office of such Lender as such Lender may from time to
time specify to the Agent and the Borrower as the office of such
Lender at which the C/D Rate Loans and Alternate Base Rate Loans
of such Lender are to be made.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or the environment,
as now or may at any time be in effect during the term of this
Agreement.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurodollar Lending Office": initially, the office of each
Lender designated as such Lender's Eurodollar Lending Office
under such Lender's name on the signature pages hereof;
thereafter, such other office of such Lender as such Lender may
from time to time specify to the Agent and the Borrower as the
office of such Lender at which the Eurodollar Loans of such
Lender are to be made.
"Eurodollar Loans": Committed Rate Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan or an Index Rate
Bid Loan, the rate per annum equal to the average (rounded upward
to the nearest 1/16th of 1%) of the respective rates notified to
the Agent by each of the Reference Lenders as the rate at which
such Reference Lender is offered Dollar deposits at or about
10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange
operations of such Reference Lender are customarily conducted for
delivery on the first day of such Interest Period for the number
of days comprised therein and in an amount (i) in the case of
Eurodollar Loans, comparable to the amount of the Eurodollar Loan
of such Reference Lender to be outstanding during such Interest
Period and (ii) in the case of an Index Rate Bid Loan by a Bid
Loan Lender, equal to the amount of the Index Rate Bid Loan or
Loans of such Bid Loan Lender to which such Interest Period
applies.
"Event of Default": any of the events specified in Section
6; provided, however, that any requirement for the giving of
notice or the lapse of time, or both, or any other condition, has
been satisfied.
"Existing Facility": the Credit Agreement, dated as of
April 29, 1988, as amended, among the Borrower, the Banks party
thereto and Chemical (as successor by merger to Manufacturers
Hanover Trust Company) as agent.
"Facility Fee": as defined in subsection 2.4.
"Federal Funds Effective Rate": as defined in the
definition of "Alternate Base Rate".
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"GAAP": generally accepted accounting principles in effect
in the United States of America from time to time.
"Governmental Authority": any nation or government, any
state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Grid Bid Loan Note": as defined in subsection 2.2(b)(vii);
collectively, the "Grid Bid Loan Notes".
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b)
another Person (including,
without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either
case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary
obligations") of any other third Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or
not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment
of any such primary obligation or (2) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of
the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), (b)
any other indebtedness of such Person which is evidenced by a
note, bond, debenture or similar instrument, (c) all obligations
of such Person under Financing Leases, (d) all obligations of
such Person in respect of acceptances issued or created for the
account of such Person and (e) all liabilities secured by any
Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment
thereof.
"Index Rate Bid Loan": any Bid Loan made at an interest
rate based upon the Applicable Index Rate (as opposed to an
absolute rate).
"Index Rate Bid Loan Request": any Bid Loan Request
requesting the Bid Loan Lenders to offer to make Index Rate Bid
Loans at an interest rate equal to the Applicable Index Rate plus
(or minus) a margin.
"Individual Bid Loan Note": as defined in subsection
2.2(b)(vii); collectively, the "Individual Bid Loan Notes".
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such
term as used in Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Alternate Base Rate
Loan, the last day of each March, June, September and December to
occur while such Loan is outstanding, (b) as to any Eurodollar
Loan having an Interest Period of three months or less and any
C/D Rate Loan having an Interest Period of 90 days or less, the
last day of such Interest Period, and (c) as to any Eurodollar
Loan or C/D Rate Loan having an Interest Period longer than three
months or 90 days, respectively, each day which is three months
or 90 days, respectively, after the first day of such Interest
Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar
Loan,
(i) initially, the period commencing on the Borrowing
Date or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion given with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the immediately preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to
the Agent not less than three Business Days prior to the last day
of the then current Interest Period with respect thereto;
(b) with respect to any C/D Rate Loan,
(i) initially, the period commencing on the
Borrowing Date or conversion date, as the case may be, with
respect to such C/D Rate Loan and ending 30, 60, 90 or 180 days
thereafter, as selected by the Borrower
in its notice of borrowing or notice of conversion given with
respect thereto; and
(ii) thereafter, each period commencing on the
last day of the immediately preceding Interest Period applicable
to such C/D Rate Loan and ending 30, 60, 90 or 180 days
thereafter, as selected by the Borrower by irrevocable notice to
the Agent not less than two Business Days prior to the last day
of the then current Interest Period with respect thereto; and
(c) with respect to any Bid Loan, the period
commencing on the Bid Loan Date with respect to such Bid Loan and
ending on the date not less than 7 nor more than 180 days
thereafter, as specified by the Borrower in such Bid Loan
Request;
provided that the foregoing provisions are subject to the
following:
(A) if any Interest Period pertaining to a
Eurodollar Loan or an Index Rate Bid Loan would otherwise end on
a day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall
end on the immediately preceding Business Day;
(B) any Interest Period pertaining to a
Eurodollar Loan or an Index Rate Bid Loan that begins on the last
Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the relevant calendar month;
(C) if any Interest Period pertaining to a
C/D Rate Loan or a Bid Loan made pursuant to an Absolute Rate Bid
Loan Request would otherwise end on a day which is not a Business
Day, such Interest Period shall be extended to the next
succeeding Business Day;
(D) if the Borrower shall fail to give
notice as provided above, the Borrower shall be deemed to have
selected an Alternate Base Rate Loan to replace the affected
Eurodollar Loan or the affected C/D Rate Loan, as the case may
be;
(E) any Interest Period in respect of a Bid
Loan that would otherwise extend beyond the Termination Date
shall end on the Termination Date; and
(F) any Interest Period in respect of a
Committed Rate Loan that would otherwise extend beyond the
Maturity Date for such Committed Rate Loan shall end on such
Maturity Date.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other),
charge or other security interest or any preference, priority or
other security agreement or preferential arrangement of any kind
or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loans": the collective reference to the Committed Rate
Loans and the Bid Loans.
"Majority Lenders": at any time, Lenders whose Commitment
Percentages aggregate at least 50.1%.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a
whole, (b) the ability of the Borrower to perform its obligations
under this Agreement or any of the Notes or (c) the validity or
enforceability of this Agreement or any of the Notes or the
rights or remedies of the Agent or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under any
Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date": as to any Eurodollar Loan or C/D Rate Loan
which shall be outstanding on the Termination Date, the first
anniversary of the date immediately preceding the first day of
the then current Interest Period with respect thereto; as to any
Alternate Base Rate Loan which shall be outstanding on the
Termination Date, the first anniversary of the date immediately
preceding the Termination Date.
"Multiemployer Plan": a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"Notes": the collective reference to the Committed Rate
Notes and the Bid Notes.
"Participant": as defined in subsection 8.7(b).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at any particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Borrower or
a Commonly Controlled Entity is (or, if such plan were terminated
at such time, would under Section 4069 of ERISA be deemed to be)
an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate": as defined in the definition of Alternate
Base Rate.
"Properties": as defined in subsection 3.10(a).
"Purchasing Lenders": as defined in subsection 8.7(d).
"Reference Lenders": initially, Chemical Bank, J.P. Morgan
Delaware and Commerzbank A.G., Grand Cayman Branch.
"Register": as defined in subsection 8.7(e).
"Release": an Acknowledgment and Release (i) substantially
in the form of Exhibit L if delivered pursuant to subsection
2.15(d), (ii) substantially in the form of Exhibit M if delivered
pursuant to subsection 2.18 and (iii) substantially in the form
of Exhibit N if delivered pursuant to subsection 8.2.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning
of such term as used in Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the
thirty-day notice period is waived under subsections .13, .14,
.16, .18, .19 or .20 of PBGC Reg. Section 2615.
"Required Lenders": at any time, Lenders whose Commitment
Percentages aggregate at least 66-2/3%.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-laws or other organizational or governing
documents of such Person, and each law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding
upon such Person or any
of its property or to which such Person or any of its property is
subject.
"Responsible Officer": as to the Borrower, the Executive
Vice President, the Vice President - Finance, the Treasurer, the
Comptroller, the Assistant Comptroller, the Deputy Treasurer or
any Assistant Treasurer of the Borrower.
"Significant Subsidiary": any Subsidiary other than
Genetics Institute, Inc. that satisfies the requirements of Rule
1-02(v) of Regulation S-X as adopted by the Securities and
Exchange Commission under the provisions of the Securities Act of
1933 and the Securities Exchange Act of 1934 as in force on the
date of this Agreement.
"Single Employer Plan": any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership
or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Termination Date": the earlier of (a) the date 364 days
after the date hereof, as such date may be extended in accordance
with the terms of subsection 2.18 and (b) the date on which the
Commitments shall terminate in accordance with the provisions of
this Agreement.
"Tranche": the collective reference to Eurodollar Loans,
C/D Rate Loans or Alternate Base Rate Loans whose Interest
Periods begin and end on the same day. A Tranche may be a "C/D
Rate Tranche", a "Eurodollar Tranche" or an "Alternate Base Rate
Tranche".
"Transferees": as defined in subsection 8.7(g).
"Transfer Effective Date": as defined in each Commitment
Transfer Supplement and each Bid Loan Assignment.
"Type": as to any Loan, its nature as a Alternate Base Rate
Loan, Eurodollar Loan or C/D Rate Loan, as the case may be.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have
the defined meanings when used in the Notes or any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any
certificate or other document made or delivered pursuant hereto,
accounting terms relating to the Borrower and its Subsidiaries
not defined in subsection 1.1 and accounting terms partly defined
in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of
such terms.
SECTION 2. THE COMMITTED RATE LOANS; THE BID LOANS;
AMOUNT AND TERMS
2.1 The Committed Rate Loans. (a) During the Commitment
Period, subject to the terms and conditions hereof, each Lender
severally agrees to make loans (individually, a "Committed Rate
Loan") to the Borrower from time to time in an aggregate
principal amount at any one time outstanding not to exceed such
Lender's Commitment, provided that no Committed Rate Loan shall
be made hereunder which would result in the Aggregate Loans being
in excess of the aggregate amount of the Commitments then in
effect. During the Commitment Period, the Borrower may use the
Commitments by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof.
(b) The Committed Rate Loans may be (i) Eurodollar Loans,
(ii) Alternate Base Rate Loans, (iii) C/D Rate Loans or (iv) a
combination thereof. Eurodollar Loans shall be made by each
Lender at its Eurodollar Lending Office, and Alternate Base Rate
and C/D Rate Loans shall be made by each Lender at its Domestic
Lending Office.
(c) Committed Rate Loans made by each Lender shall be
evidenced by a promissory note of the Borrower, substantially in
the form of Exhibit A with appropriate insertions (a "Committed
Rate Note"), payable to the order of such Lender and representing
the obligation of the Borrower to pay the lesser of (a) the
amount of the initial Commitment of such Lender and (b) the
aggregate unpaid principal amount of all Committed Rate Loans
made by such Lender. Each Lender is hereby authorized to record
the date, Type and amount of each Committed Rate Loan made by
such Lender, the maturity date thereof, the date and amount of
each payment or prepayment of principal thereof and the interest
rate with respect thereto on the schedule annexed to and
constituting a part of its Committed Rate Note, and any such
recordation shall constitute prima facie evidence of the accuracy
of the information so recorded; provided, however, that the
failure to make any such recordation shall not affect the
obligations of the Borrower hereunder or under such Committed
Rate Note. Each Committed Rate Note shall (i) be dated the
Closing Date, (ii) be stated to mature on the Maturity Date with
respect to each Committed Rate Loan evidenced thereby, and (iii)
bear interest on the unpaid principal amount thereof from time to
time outstanding at the applicable interest rate per annum
determined as provided in subsections 2.8 and 2.10. Interest on
each Committed Rate Note shall be payable as specified in
subsections 2.8 and 2.10.
(d) The Borrower may borrow Committed Rate Loans on any
Business Day; provided, however, that the Borrower shall give the
Agent irrevocable notice thereof (which notice must be received
by the Agent (i) prior to 12:00 Noon, New York City time, three
Business Days prior to the requested Borrowing Date, in the case
of Eurodollar Loans, (ii) prior to 12:00 Noon, New York City
time, two Business Days prior to the requested Borrowing Date in
the case of C/D Rate Loans and (iii) prior to 11:00 A.M., New
York City time, on the requested Borrowing Date, in the case of
Alternate Base Rate Loans). Each such notice shall be given by
facsimile transmission substantially in the form of Exhibit D
(with appropriate insertions) or shall be given by telephone
(specifying the information set forth in Exhibit D) promptly
confirmed by notice given by facsimile transmission substantially
in the form of Exhibit D (with appropriate insertions). On the
day of receipt of any such notice from the Borrower, the Agent
shall promptly notify each Lender thereof. Each Lender will make
the amount of its share of each borrowing available to the Agent
for the account of the Borrower at the office of the Agent set
forth in subsection 8.3 at 11:00 A.M. (or 3:00 P.M., in the case
of Alternate Base Rate Loans), New York City time, on the
Borrowing Date requested by the Borrower in funds immediately
available to the Agent as the Agent may direct. The proceeds of
all such Committed Rate Loans will then be made available to the
Borrower by the Agent at the office of the Agent specified in
subsection 8.3 by crediting the account of the Borrower on the
books of such office of the Agent with the aggregate of the
amount made available to the Agent by the Lenders and in like
funds as received by the Agent.
2.2 The Bid Loans. (a) The Borrower may borrow Bid Loans
from time to time on any Business Day during the period from the
Closing Date until the date occurring 7 days prior to the
Termination Date in the manner set forth in this subsection and
in amounts such that the Aggregate Loans at any time outstanding
shall not exceed the aggregate amount of the Commitments at such
time, provided, however, that the aggregate principal amount of
the outstanding Bid Loans of a Bid Loan Lender may (but shall not
be required to) exceed its Commitment.
(b) (i) The Borrower shall request Bid Loans by
delivering a Bid Loan Request to the Agent, not later than 12:00
Noon (New York City time) four Business Days prior to the
proposed Bid Loan Date (in the case of an Index Rate Bid Loan
Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Bid Loan Date (in the case of
an Absolute Rate Bid Loan Request). Each Bid Loan Request may
solicit bids for Bid Loans in an aggregate principal amount of
$50,000,000 or an integral multiple of $10,000,000 in excess
thereof and for not more than three alternative Interest Periods
for such Bid Loans. The Interest Period for each Bid Loan shall
end not less than 7 days (one month in the case of Index Rate Bid
Loans) nor more than 180 days (six months in the case of Index
Rate Bid Loans) after the Bid Loan Date therefor (and in any
event subject to the proviso to the definition of "Interest
Period" in subsection 1.1). The Agent shall promptly notify each
Bid Loan Lender by facsimile transmission of the contents of each
Bid Loan Request received by it.
(ii) In the case of an Index Rate Bid Loan Request,
upon receipt of notice from the Agent of the contents of such Bid
Loan Request, any Bid Loan Lender that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more
Bid Loans at the Applicable Index Rate plus or minus a margin for
each such Bid Loan determined by such Bid Loan Lender, in its
sole discretion. Any such irrevocable offer shall be made by
delivering a Bid Loan Offer to the Agent before 10:30 A.M. (New
York City time) three Business Days before the proposed Bid Loan
Date, setting forth the maximum amount of Bid Loans for each
Interest Period, and the aggregate maximum amount for all
Interest Periods, which such Lender would be willing to make
(which amount may, subject to subsection 2.2(a), exceed such
Lender's Commitment) and the margin above or below the Applicable
Index Rate at which such Bid Loan Lender is willing to make each
such Bid Loan; the Agent shall advise the Borrower before 11:15
A.M. (New York City time) three Business Days before the proposed
Bid Loan Date of the contents of each such Bid Loan Offer
received by it. If the Agent in its capacity as a Bid Loan
Lender shall, in its sole discretion, elect to make any such
offer, it shall advise the Borrower of the contents of its Bid
Loan Offer before 10:15 A.M. (New York City time) three Business
Days before the proposed Bid Loan Date.
(iii) In the case of an Absolute Rate Bid Loan
Request, upon receipt of notice from the Agent of the contents of
such Bid Loan Request, any Bid Loan Lender that elects, in its
sole discretion, to do so, shall irrevocably offer to make one or
more Bid Loans at a rate or rates of interest for each such Bid
Loan determined by such Bid Loan Lender in its sole discretion.
Any such irrevocable offer shall be made by delivering a Bid Loan
Offer to the Agent before 9:30 A.M. (New York City time) on the
proposed Bid Loan Date, setting forth the maximum amount of Bid
Loans for each Interest Period, and the aggregate maximum amount
for all Interest Periods, which such Bid Loan Lender would be
willing to make (which amount may, subject to subsection 2.2(a),
exceed such Bid Loan Lender's Commitment) and the rate or rates
of interest at which such Bid Loan Lender is willing to make each
such Bid Loan; the Agent shall advise the Borrower before 10:15
A.M. (New York City time) on the proposed Bid Loan Date of the
contents of each such Bid Loan Offer received by it. If the
Agent in its capacity as a Bid Loan Lender shall, in its sole
discretion, elect to make any such offer, it shall advise the
Borrower of the contents of its Bid Loan Offer before 9:15 A.M.
(New York City time) on the proposed Bid Loan Date.
(iv) The Borrower shall before 11:30 A.M. (New York
City time) three Business Days before the proposed Bid Loan Date
(in the case of Bid Loans requested by an Index Rate Bid Loan
Request) and before 10:30 A.M. (New York City time) on the
proposed Bid Loan Date (in the case of Bid Loans requested by an
Absolute Rate Bid Loan Request) either, in its absolute
discretion:
(A) cancel such Bid Loan Request by giving the Agent
telephone notice to that effect, or
(B) accept one or more of the offers made by any Bid
Loan Lender or Bid Loan Lenders pursuant to clause (ii) or clause
(iii) above, as the case may be, by giving telephone notice to
the Agent (immediately confirmed by delivery to the Agent of a
Bid Loan Confirmation) of the amount of Bid Loans for each
relevant Interest Period to be made by each Bid Loan Lender
(which amount shall be equal to or less than the maximum amount
for such Interest Period specified in the Bid Loan Offer of such
Bid Loan Lender, and for all Interest Periods included in such
Bid Loan Offer shall be less than the aggregate maximum amount
specified in such Bid Loan Offer for all such Interest Periods)
and reject any remaining offers made by Bid Loan Lenders pursuant
to clause (ii) or clause (iii) above, as the case may be;
provided, however, that (x) the Borrower may not accept offers
for Bid Loans for any Interest Period in an aggregate principal
amount in excess of the maximum principal amount requested for
such Interest Period in the related Bid Loan Request, (y) if the
Borrower accepts any of such offers, it must accept offers
strictly based upon pricing for such relevant Interest Period and
no other criteria whatsoever and (z) if two or more Bid Loan
Lenders submit offers for any Interest Period at identical
pricing and the Borrower accepts any of such offers but does not
wish to borrow the total amount offered by such Bid Loan Lenders
with such identical pricing, the Borrower shall accept offers
from all of such Bid Loan Lenders in amounts allocated among them
pro rata according to the amounts offered by such Bid Loan
Lenders (or as nearly pro rata as shall be practicable, after
giving effect to the requirement that Bid Loans made by a Bid
Loan Lender on a Bid Loan Date for each relevant Interest Period
shall be in a principal amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof).
(v) If the Borrower notifies the Agent that a Bid
Loan Request is cancelled pursuant to clause (iv)(A) above, the
Agent shall give prompt telephone notice thereof to the Bid Loan
Lenders, and the Bid Loans requested thereby shall not be made.
(vi) If the Borrower accepts pursuant to clause
(iv)(B) above one or more of the offers made by any Bid Loan
Lender or Bid Loan Lenders, the Agent shall promptly notify by
telephone each Bid Loan Lender which has made such an offer of
the aggregate amount of such Bid Loans to be made on such Bid
Loan Date for each Interest Period and of the acceptance or
rejection of any offers to make such Bid Loans made by such Bid
Loan Lender. Each Bid Loan Lender which is to make a Bid Loan
shall, before 12:00 Noon (New York City time) on the Bid Loan
Date specified in the Bid Loan Request applicable thereto, make
available to the Agent at its office set forth in subsection 8.3
the amount of Bid Loans to be made by such Bid Loan Lender, in
immediately available funds. The Agent will make such funds
available to the Borrower as soon as practicable on such date at
the Agent's aforesaid address. As soon as practicable after each
Bid Loan Date, the Agent shall notify each Lender of the
aggregate amount of Bid Loans advanced on such Bid Loan Date and
the respective Interest Periods therefor.
(viii) Bid Loans made by each Bid Loan Lender
shall be evidenced by a promissory note of the Borrower
substantially in the form of Exhibit B with appropriate
insertions (a "Grid Bid Loan Note") or (pursuant to the terms of
subsection 2.2(b)(viii) below), by a promissory note of the
Borrower in the form of Exhibit C with appropriate insertions (an
"Individual Bid Loan Note"). Each Grid Bid Loan Note shall
represent the obligation of the Borrower to pay the lesser of (i)
the aggregate Commitments and (ii) the aggregate unpaid principal
amount of all Bid Loans made by such Bid Loan Lender (other than
those evidenced by an Individual Bid Loan Note). Each Bid Loan
Lender is hereby authorized to record the date and amount of each
Bid Loan made by such Bid Loan Lender, the maturity date thereof,
the date of payment thereof and the interest rate with respect
thereto on the schedule annexed to and constituting a part of its
Grid Bid Loan Note, and any such recordation shall constitute
prima facie evidence of the accuracy of the information so
recorded; provided, however, that the failure to make any such
recordation shall not affect the obligations of the Borrower
hereunder or under such Grid Bid Loan Note. Each Grid Bid Loan
Note shall be dated the Closing Date.
(viii) Amounts advanced by a Bid Loan Lender on a
Bid Loan Date which have the same Interest Period and interest
rate shall be deemed to constitute one Bid Loan so long as such
amounts remain evidenced by the Grid Bid Loan Note of such Bid
Loan Lender. Any such Bid Loan Lender that wishes such amounts
to constitute more than one Bid Loan and to have each such Bid
Loan evidenced by an Individual Bid Loan Note shall notify the
Agent and the Borrower by facsimile transmission of the
respective principal amounts of the Bid Loans (which principal
amounts shall not be less than $10,000,000 for any of such Bid
Loans) to be evidenced by each such Individual Bid Loan Note.
Not later than three Business Days after receipt of such notice,
the Borrower shall deliver to such Bid Loan Lender an Individual
Bid Loan Note payable to the order of such Bid Loan Lender in the
principal amount of each such Bid Loan and otherwise conforming
to the requirements of this Agreement. Upon receipt of such Bid
Loan Note, such Bid Loan Lender shall endorse on the schedule
attached to its Grid Bid Loan Note the transfer of such Bid Loan
from such Grid Bid Loan Note to such Individual Bid Loan Note.
Within the limits and on the conditions set forth in this
subsection, the Borrower may from time to time borrow under this
subsection, repay pursuant to paragraph (d) below, and reborrow
under this subsection.
(d) The Borrower shall repay to the Agent for the
account of each Bid Loan Lender which has made a Bid Loan (or the
Bid Loan Assignee in respect thereof, as the case may be) on the
last day of the Interest Period for each Bid Loan (such Interest
Period being that specified by the Borrower for repayment of such
Bid Loan in the related Bid Loan Request) the then unpaid
principal amount of such Bid Loan. The Borrower shall not have
the right to prepay any principal amount of any Bid Loan.
(e) The Borrower shall pay interest on the unpaid
principal amount of each Bid Loan from the applicable Bid Loan
Date to the stated maturity date thereof, at the rate of interest
determined pursuant to paragraph (b) above (calculated on the
basis of a 360 day year for actual days elapsed), payable on the
Interest Payment Date or dates specified by the Borrower for such
Bid Loan in the related Bid Loan Request as provided in the Bid
Note evidencing such Bid Loan. If all or a portion of the
principal amount of any Bid Loan or any interest payable thereon
shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall, without
limiting any rights of any Lender under this Agreement, bear
interest at a rate per annum which is (x) in the case of overdue
principal, 2% above the rate which would otherwise be applicable
pursuant to the Bid Note evidencing such Bid Loan until the
scheduled maturity date with respect thereto as set forth in the
Bid Note evidencing such Bid Loan, and for each day thereafter at
a rate per annum which is 2% above the Alternate Base Rate or (y)
in the case of overdue interest, 2% above the Alternate Base Rate
plus the Applicable Margin, in each case from the date of such
non-payment until such amount is paid in full (as well after as
before judgment).
2.3 Denomination of Committed Rate Loans. Each borrowing
of Committed Rate Loans shall be in an aggregate principal amount
of $50,000,000 or a whole multiple of $10,000,000 in excess
thereof.
2.4 Fees. The Borrower agrees to pay to the Agent, for the
ratable benefit of the Lenders, a facility fee (the
"Facility Fee") of .05% per annum of the aggregate Commitments
from and including the date of this Agreement to but excluding
the Termination Date and .05% per annum of the average principal
amount of Committed Rate Loans outstanding from and after the
Termination Date, payable quarterly in arrears on the last day of
each March, June, September and December and, as the case may be,
(a) on the Termination Date (in respect of the fee relating to
the aggregate Commitments) and (b) on the date on which the
Committed Rate Loans are fully repaid (in respect of the fee
relating to outstanding Committed Rate Loans). Such quarterly
payment made hereunder shall be a payment in consideration for
holding open the availability of the Commitments for the
quarterly period completed on the date payment is due.
2.5 Changes of Commitments. (a) The Borrower shall have
the right to terminate or reduce the unused portion of the
Commitments at any time or from time to time upon not less than
five Business Days' prior notice to the Agent (which shall notify
the Lenders thereof as soon as practicable) of each such
termination or reduction, which notice shall specify the
effective date thereof and the amount of any such reduction
(which shall be in a minimum amount of $50,000,000 or a whole
multiple of $5,000,000 in excess thereof) and shall be
irrevocable and effective only upon receipt by the Agent,
provided that no such reduction or termination shall be permitted
if after giving effect thereto, and to any prepayments of the
Committed Rate Loans made on the effective date thereof, the then
outstanding principal amount of the Aggregate Loans would exceed
the amount of the Commitments then in effect.
(b) The Commitments once terminated or reduced pursuant
to this subsection may not be reinstated.
2.6 Optional Prepayments. The Borrower may, upon five
Business Days' irrevocable notice to the Agent (which shall
notify the Lenders thereof as soon as practicable), prepay
Committed Rate Loans. If any Committed Rate Loan shall be
prepaid on any day other than the last day of the Interest Period
applicable thereto, the Borrower shall, on the date of such
payment, also pay all interest accrued on such Loan to the date
of such payment and all amounts payable pursuant to subsection
2.16 in connection therewith.
2.7 Minimum Principal Amount of Tranches and Maximum Number
of Tranches. All borrowings, payments and prepayments in respect
of Committed Rate Loans shall be in such amounts and be made
pursuant to such elections so that after giving effect thereto
the aggregate principal amount of the Committed Rate Loans
comprising any Tranche shall not be less than $50,000,000 or a
whole multiple of $10,000,000 in excess thereof, and there shall
be no more than ten Tranches outstanding at any one time.
2.8 Committed Rate Loan Interest Rates and Payment Dates.
(a) Each Committed Rate Loan comprising each Eurodollar Tranche
shall bear interest for each day during each Interest
<page
Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable
Margin.
(b) Each Committed Rate Loan comprising each C/D Rate
Tranche shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the C/D
Rate determined for such day plus the Applicable Margin.
(c) The Committed Rate Loans comprising each Alternate
Base Rate Tranche shall bear interest at a rate per annum equal
to the Alternate Base Rate plus the Applicable Margin.
(d) If all or a portion of the principal amount of any
Committed Rate Loan which is a Eurodollar Loan or C/D Rate Loan
shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue principal amount of such
Committed Rate Loan shall be converted to an Alternate Base Rate
Loan at the end of the Interest Period applicable thereto.
(e) If all or a portion of (i) the principal amount of
any Committed Rate Loan, (ii) any interest payable thereon or
(iii) any fee or other amount payable hereunder shall not be paid
when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per
annum which is (x) in the case of overdue principal, the rate
that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 2% or (y) in the
case of overdue interest, fees or other amounts, the rate
described in paragraph (c) of this subsection plus 2%, in each
case from the date of such non-payment until such amount is paid
in full (as well after as before judgment).
(f) Interest on each Committed Rate Loan shall be
payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (e) of this subsection
shall be payable from time to time on demand.
2.9 Conversion Options. (a) The Borrower may elect from
time to time to convert Eurodollar Loans or C/D Rate Loans to
Alternate Base Rate Loans, and to convert Eurodollar Loans or
Alternate Base Rate Loans to C/D Rate Loans, by giving the Agent
at least three Business Days' prior irrevocable written notice of
such election, provided that any such conversion of Eurodollar
Loans or C/D Rate Loans shall, subject to the second following
sentence, only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to
convert Alternate Base Rate Loans or C/D Rate Loans to Eurodollar
Loans by giving the Agent at least three Business Days' prior
irrevocable notice of such election, provided that any such
conversion of C/D Rate Loans shall, subject to the following
sentence, only be made on the last day of an Interest Period with
respect thereto. If the last day of an Interest Period with
respect to a C/D Rate Loan that is to be converted to a
Eurodollar Loan is not a Business Day in London, then such
conversion shall be made on the next succeeding Business Day in
London and during the period from such last day of an Interest
Period to such succeeding Business Day such Loan shall bear
interest as if it were an Alternate Base Rate Loan. All or any
part of outstanding Eurodollar Loans, Alternate Base Rate Loans
and C/D Rate Loans may be converted as provided herein, provided
that (i) no Loan may be converted into a Eurodollar Loan or a C/D
Rate Loan when any Default or Event of Default has occurred and
is continuing and the Agent or the Required Lenders have
determined that such conversion is not appropriate and (ii)
partial conversions shall be in an aggregate principal amount of
$50,000,000 or a whole multiple of $10,000,000 in excess thereof.
(b) Any Eurodollar Loans or C/D Rate Loans may be
continued as such upon the expiration of an Interest Period with
respect thereto by compliance by the Borrower with the notice
provisions contained in subsection 2.9(a); provided, that no
Eurodollar Loan or C/D Rate Loan may be continued as such when
any Default or Event of Default has occurred and is continuing,
and the Agent or the Required Lenders have determined that such a
continuation is not appropriate, in which case such Loan shall be
automatically converted to an Alternate Base Rate Loan on the
last day of the then current Interest Period with respect
thereto.
2.10 Computation of Interest and Fees. (a) Interest payable
hereunder with respect to Alternate Base Rate Loans shall be
calculated on the basis of a year of 365/6 days for the actual
days elapsed. All other fees, interest and all other amounts
payable hereunder shall be calculated on the basis of a 360 day
year for the actual days elapsed. The Agent shall as soon as
practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate and of a C/D Rate on the
Business Day of the determination thereof. Any change in the
interest rate on a Committed Rate Loan resulting from a change in
the Alternate Base Rate, the C/D Assessment Rate or the C/D
Reserve Percentage shall become effective as of the opening of
business on the day on which such change in the Alternate Base
Rate, the C/D Assessment Rate or the C/D Reserve Percentage shall
become effective. The Agent shall as soon as practicable notify
the Borrower and the Lenders of the effective date and the amount
of each such change.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive
and binding on the Borrower and the Lenders in the absence of
manifest error. The Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations given
by the Reference Lenders and the computations used by the Agent
in determining any interest rate.
(c) If any Reference Lender's Commitment shall
terminate, for any reason whatsoever (otherwise than with
termination of all the Commitments), such Reference Lender shall
thereupon cease to be a Reference Lender, and if for any reason
there shall cease to be at least three Reference Lenders, then
the Agent (after consultation with the Borrower and the Lenders)
shall, by notice to the Borrower and the Lenders, designate
another Lender as a Reference Lender so that there shall at all
times be at least three Reference Lenders.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Agent as contemplated hereby.
If any of the Reference Lenders shall be unable or otherwise
fails to supply such rates to the Agent upon its request, the
rate of interest shall, subject to the provisions of subsection
2.13, be determined on the basis of the quotations of the
remaining Reference Lenders or Reference Lender.
2.11 Pro Rata Treatment and Payments. Except as expressly
provided in subsections 2.15(d), 2.18 or 8.2, as the case may be,
each borrowing by the Borrower of Committed Rate Loans and any
reduction of the Commitments shall be made pro rata according to
the respective Commitment Percentages of the Lenders. Each
payment by the Borrower under this Agreement or any Note shall be
applied, first, to any fees then due and owing pursuant to
subsection 2.4, second, to interest then due and owing in respect
of the Notes and, third, to principal then due and owing
hereunder and under the Notes. Each payment by the Borrower on
account of any fees pursuant to subsection 2.4 shall be made pro
rata in accordance with the respective amounts due and owing.
Except as expressly provided in subsections 2.15(d), 2.18 or 8.2,
as the case may be, each payment (other than prepayments) by the
Borrower on account of principal of and interest on the Loans
shall be made pro rata according to the respective amounts due
and owing. Each prepayment on account of principal of the Loans
shall be applied, first, to such of the Committed Rate Loans as
the Borrower may designate (to be applied pro rata among the
Lenders), and, second, after all Committed Rate Loans shall have
been paid in full, to Bid Loans, pro rata according to the
respective amounts outstanding; provided, that prepayments made
pursuant to subsection 2.14 shall be applied in accordance with
such subsection; and provided, further that nothing herein shall
be deemed to permit optional prepayments on account of Bid Loans.
All payments (including prepayments) to be made by the Borrower
on account of principal, interest and fees shall be made without
defense, set-off or counterclaim and shall be made to the Agent
for the account of the Lenders at the Agent's office specified in
subsection 8.3 in Dollars and in immediately available funds.
The Agent shall distribute such payments to the Lenders entitled
thereto promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan or Bid Loan made
pursuant to an Index Rate Bid Loan Request becomes due and
payable on a day other than a Business Day, the maturity thereof
shall be extended to the next
succeeding Business Day unless the result of such extension would
be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding
Business Day.
2.12 Non-Receipt of Funds by the Agent. (a) Unless the
Agent shall have been notified by a Lender prior to the date a
Committed Rate Loan is to be made by such Lender (which notice
shall be effective upon receipt) that such Lender does not intend
to make the proceeds of such Committed Rate Loan available to the
Agent, the Agent may assume that such Lender has made such
proceeds available to the Agent on such date, and the Agent may
in reliance upon such assumption (but shall not be required to)
make available to the Borrower a corresponding amount. If such
amount is made available to the Agent on a date after such
Borrowing Date, such Lender shall pay to the Agent on demand an
amount equal to the product of (i) the daily average Federal
Funds Effective Rate during such period, times (ii) the amount of
such Lender's Commitment Percentage of such borrowing, times
(iii) a fraction, the numerator of which is the number of days
that elapse from and including such Borrowing Date to the date on
which such Lender's Commitment Percentage of such borrowing shall
have become immediately available to the Agent and the
denominator of which is 360. A certificate of the Agent
submitted to any Lender with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest
error. If such Lender's Commitment Percentage is not in fact
made available to the Agent by such Lender within three Business
Days of such Borrowing Date, the Agent shall be entitled to
recover such amount with interest thereon at the rate per annum
applicable to Alternate Base Rate Loans hereunder, on demand,
from the Borrower.
(b) Unless the Agent shall have been notified by the
Borrower prior to the date on which any payment is due from it
hereunder (which notice shall be effective upon receipt) that the
Borrower does not intend to make such payment, the Agent may
assume that the Borrower has made such payment when due, and the
Agent may in reliance upon such assumption (but shall not be
required to) make available to each Lender on such payment date
an amount equal to the portion of such assumed payment to which
such Lender is entitled hereunder, and if the Borrower has not in
fact made such payment to the Agent, such Lender shall, on
demand, repay to the Agent the amount made available to such
Lender. If such amount is repaid to the Agent on a date after
the date such amount was made available to such Lender, such
Lender shall pay to the Agent on demand an amount equal to the
product of (i) the daily average Federal Funds Effective Rate
during such period, times (ii) the amount made available to such
Lender by the Agent pursuant to this paragraph (b), times (iii) a
fraction, the numerator of which is the number of days that
elapse from and including the date on which such amount was made
available to such Lender to the date on which such amount shall
have been repaid to the Agent by such Lender and become
immediately available to the Agent and the denominator of which
is 360.
(c) A certificate of the Agent submitted to the
Borrower or any Lender with respect to any amount owing under
this subsection shall be conclusive in the absence of manifest
error.
2.13 Inability to Determine Interest Rate. (a)
Notwithstanding any other provision of this Agreement, if (i) the
Agent determines that no Reference Lender is, for any reason
whatsoever, quoting a rate referred to in the definition of
Eurodollar Rate for any Interest Period or (ii) the Majority
Lenders shall determine (which determination shall be conclusive)
that the rates quoted by the Reference Lenders for the purpose of
computing the Eurodollar Rate do not adequately and fairly
reflect the cost to such Lenders of funding Eurodollar Loans that
the Borrower has requested be outstanding as a Eurodollar Tranche
during such Interest Period, the Agent shall forthwith give
telephone notice of such determination, confirmed in writing, to
the Borrower and the Lenders at least two Business Days prior to
the first day of such Interest Period. Unless the Borrower shall
have notified the Agent upon receipt of such telephone notice
that it wishes to rescind or modify its request regarding such
Eurodollar Loans, any Loans that were requested to be made as
Eurodollar Loans shall be made as Alternate Base Rate Loans and
any Loans that were requested to be converted into or continued
as Eurodollar Loans shall be converted into Alternate Base Rate
Loans. Until any such notice has been withdrawn by the Agent, no
further Loans shall be made as, continued as, or converted into,
Eurodollar Loans.
(b) Notwithstanding any other provision of this
Agreement, if (i) the Agent determines that no Reference Lender
is, for any reason whatsoever, quoting a rate referred to in the
definition of C/D Base Rate for any Interest Period or (ii) the
Majority Lenders shall determine (which determination shall be
conclusive) that the rates quoted by the Reference Lenders for
the purpose of computing the C/D Rate do not adequately and
fairly reflect the cost to such Lenders of funding C/D Rate Loans
that the Borrower has requested be outstanding as a C/D Rate
Tranche during such Interest Period, the Agent shall forthwith
give telephone notice of such determination to the Borrower and
the Lenders on or before the first day of such Interest Period.
Unless the Borrower shall have notified the Agent after receipt
of such telephone notice that it wishes to rescind or modify its
request regarding such C/D Rate Loans, any Loans that were
requested to be made as C/D Rate Loans shall be made as Alternate
Base Rate Loans and any Loans that were requested to be converted
into or continued as C/D Rate Loans shall be converted into
Alternate Base Rate Loans. Until such notice has been withdrawn
by the Agent, no further Loans shall be made as, continued as, or
converted into, C/D Rate Loans.
(c) In the event that the Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrower) that by reason of circumstances affecting the interbank
eurodollar market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for any Interest Period with
respect to a proposed Bid Rate Loan to be made pursuant to an
Index Rate Bid Loan Request, the Agent shall forthwith give
telephone notice of such determination, confirmed in writing, to
the Borrower and the Bid Loan Lenders at least two Business Days
prior to the proposed Bid Loan Date, and such Bid Loans shall not
be made on such Bid Loan Date. Until any such notice has been
withdrawn by the Agent, no further Index Rate Bid Loan Requests
shall be submitted by the Borrower.
2.14 Illegality. Notwithstanding any other provision of
this Agreement, if the adoption of or any change in any
Requirement of Law or in the interpretation or application
thereof by the relevant Governmental Authority to any Lender
shall make it unlawful for such Lender or its Eurodollar Lending
Office to make or maintain Eurodollar Loans as contemplated by
this Agreement or to obtain in the interbank eurodollar market
through its Eurodollar Lending Office the funds with which to
make such Loans, (a) such Lender shall promptly notify the Agent
and the Borrower thereof, (b) the commitment of such Lender
hereunder to make Eurodollar Loans or continue Eurodollar Loans
as such shall forthwith be cancelled and (c) such Lender's
Committed Rate Loans then outstanding as Eurodollar Loans, if
any, shall be repaid and reborrowed on the Interest Payment Date
for such Loans or within such earlier period as required by law
as Alternate Base Rate Loans. The Borrower hereby agrees
promptly to pay any Lender, upon its demand, any additional
amounts necessary to compensate such Lender for actual and direct
costs reasonably incurred by such Lender in making any repayment
in accordance with this subsection including, but not limited to,
any interest or fees payable by such Lender to lenders of funds
obtained by it in order to make or maintain its Eurodollar Loans
hereunder. A certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender, through the
Agent, to the Borrower shall be conclusive in the absence of
manifest error. Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its Eurodollar Lending
Office) to avoid or to minimize any amounts which may otherwise
be payable pursuant to this subsection; provided, however, that
such efforts shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed by such
Lender to be material.
2.15 Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request
or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to
the date hereof:
(i) does or shall subject such Lender to any tax of
any kind whatsoever with respect to this Agreement, any Note or
any Eurodollar Loan or C/D Rate Loan made by it, or change the
basis of taxation of payments to such Lender of principal,
facility fee, interest or any other amount payable hereunder
(except for changes in the rate of tax on the overall net income
of such Lender);
(ii) does or shall impose, modify or hold applicable
any reserve, special deposit, compulsory loan or similar
requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, or
other credit extended by, or any other acquisition of funds by,
any office of such Lender which are not otherwise included in the
determination of the C/D Rate hereunder or covered by subsection
2.15(b);
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to
such Lender of making or maintaining Loans or to reduce any
amount receivable hereunder or under any Note, then, in any such
case, the Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such
Lender for such additional cost or reduced amount receivable
which such Lender reasonably deems to be material as determined
by such Lender with respect to its Eurodollar Loans and C/D Rate
Loans. A certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender, through the
Agent, to the Borrower shall be conclusive in the absence of
manifest error. Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its Domestic Lending
Office or Eurodollar Lending Office, as the case may be) to avoid
or to minimize any amounts which might otherwise be payable
pursuant to this paragraph of this subsection; provided, however,
that such efforts shall not cause the imposition on such Lender
of any additional costs or legal or regulatory burdens deemed by
such Lender to be material.
(b) In addition to amounts which may become payable
from time to time pursuant to paragraph (a) of this subsection,
the Borrower agrees to pay to each Lender which requests
compensation under this paragraph (b) (by notice to the
Borrower), on the last day of each Interest Period with respect
to any Eurodollar Loan made by such Lender, so long as such
Lender shall be required to maintain reserves against
"Eurocurrency liabilities" under Regulation D of the Board of
Governors of the Federal Reserve System (or, so long as such
Lender may be required by such Board of Governors or by any other
Governmental Authority to maintain reserves against any other
category of liabilities which includes deposits by reference to
which the interest rate on Eurodollar Loans is determined as
provided in this Agreement or against any category of extensions
of credit or other assets of such Lender which includes any
Eurodollar Loans), an additional amount (determined by such
Lender and notified to the Borrower) representing such Lender's
calculation or, if an accurate calculation is impracticable,
reasonable estimate (using such reasonable means of allocation as
such Lender shall determine) of the actual costs, if any,
incurred by such Lender during such Interest Period as a result
of the applicability of the foregoing reserves to such Eurodollar
Loans, which amount in any event shall not exceed the product of
the following for each day of such Interest Period:
(i) the principal amount of the Eurodollar Loans
made by such Lender to which such Interest Period relates
outstanding on such day; and
(ii) the difference between (x) a fraction the
numerator of which is the Eurodollar Rate (expressed as a
decimal) applicable to such Eurodollar Loan and the denominator
of which is one minus the maximum rate (expressed as a decimal)
at which such reserve requirements are imposed by such Board of
Governors or other Governmental Authority on such date minus (y)
such numerator; and
(iii) a fraction the numerator of which is one
and the denominator of which is 360.
(c) If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding
capital adequacy or in the interpretation or application thereof
or compliance by such Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) from any central bank or
Governmental Authority made subsequent to the date hereof does or
shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender or
such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by
an amount deemed by such Lender to be material, then from time to
time, within 15 days after demand by such Lender, the Borrower
shall pay to such Lender such additional amount as shall be
certified by such Lender as being required to compensate it for
such reduction.
(d) In the event that any Lender shall submit a
request for reimbursement of additional amounts pursuant to
subsection 2.15(a), (b) or (c), the Borrower may (i) provide,
with the consent of the Agent (which consent shall not be
unreasonably withheld), another financial institution to acquire,
pursuant to subsection 8.7(d), the Commitment of such Lender and
all amounts owing to such Lender in respect of Committed Rate
Loans under this Agreement or (ii) prepay, in accordance with the
terms and provisions of the Release to which such Lender shall be
party, the outstanding Committed Rate Loans of such Lender in
full, (together with all other amounts owing to such Lender
hereunder (other than Bid Loans of such Lender), including,
without limitation, amounts payable pursuant to subsection 2.16),
and upon such prepayment, terminate the Commitment of such
Lender. In addition, the Borrower will reimburse any Lender
submitting such request for all such additional amounts incurred
by such Lender, provided that no such reimbursement shall be
required in respect of periods commencing (x) prior to the
commencement of the Interest Period in respect of which such
reimbursement is sought, in the case of any reimbursement
pursuant to subsection 2.15(b), or (y) prior to the date which is
60 days prior to the date of such request, in all other cases.
The Borrower will also be required to provide additional
reimbursement to such Lender for periods subsequent to such
request through the date of such replacement pursuant to clause
(i) above or through the date of such prepayment and cancellation
pursuant to clause (ii) above, as the case may be.
(e) The agreements in this subsection shall survive the
termination of this Agreement and payment of the Notes and all
other amounts payable hereunder.
2.16 Indemnity. The Borrower hereby agrees to indemnify
each Lender and to hold such Lender harmless from any loss or
expense which such Lender may sustain or incur as a consequence
of (a) default by the Borrower in payment of the principal amount
of or interest on any Loan by such Lender in accordance with the
terms of subsections 2.2(e) and 2.8(e), as the case may be, (b)
default by the Borrower in making a borrowing after the Borrower
has given a notice in accordance with subsection 2.1 or 2.2, (c)
default by the Borrower in making any prepayment after the
Borrower has given a notice in accordance with subsection 2.6
and/or (d) the making by the Borrower of a prepayment of a
Committed Rate Loan on a day which is not the last day of the
Interest Period with respect thereto, in each case including, but
not limited to, any such loss or expense arising from interest or
fees payable by such Lender to lenders of funds obtained by it in
order to maintain its Loans hereunder. A certificate as to any
additional amounts payable pursuant to this subsection submitted
by any Lender, through the Agent, to the Borrower shall be
conclusive in the absence of manifest error. The agreements in
this subsection shall survive termination of this Agreement and
payment of the Notes and all other amounts payable hereunder.
2.17 Taxes. (a) All payments made by the Borrower under
this Agreement and the Notes shall be made free and clear of, and
without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding, in the case of the Agent and
each Lender, net income and franchise taxes (imposed in lieu of
net income taxes) imposed on the Agent or such Lender, as the
case may be, as a result of a present or former connection
between the jurisdiction of the government or taxing authority
imposing such tax on the Agent or such Lender (excluding a
connection arising solely from the Agent or such Lender having
executed, delivered or performed its obligations or received a
payment under, or enforced this Agreement or the Notes), or any
political subdivision or taxing authority thereof or therein, or
by any jurisdiction in which such Lender's Domestic Lending
Office or Eurodollar Lending Office, as the case may be, is
located or any political subdivision or taxing authority thereof
or therein (all such non-excluded taxes, levies, imposts, duties,
fees, deductions, charges or withholdings being hereinafter
called "Taxes"). If any Taxes are required to be withheld from
any amounts payable to the Agent or any Lender hereunder or under
the Notes, the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent
or such Lender (after payment of all Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the Notes. Whenever any Taxes
are payable by the Borrower, as promptly as practicable
thereafter, the Borrower shall send to the Agent, for its own
account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay
any Taxes when due to the appropriate taxing authority or fails
to remit to the Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agent and
the Lenders for any incremental taxes, interest or penalties that
may become payable by the Agent or any Lender as a result of any
such failure.
(b) Prior to the first Interest Payment Date each
Lender that is not incorporated under the laws of the United
States of America or a state thereof agrees that it will deliver
to the Borrower and the Agent (i) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224 or
successor applicable form, as the case may be, certifying in each
case that such Lender is entitled to receive payments under this
Agreement and the Notes payable to it, without deduction or
withholding of any United States federal income taxes, and (ii)
an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption
from United States backup withholding tax. Each Lender which
delivers to the Borrower and the Agent a Form 1001 or 4224 and
Form W-8 or W-9 pursuant to the immediately preceding sentence
further undertakes to deliver to the Borrower and the Agent two
further copies of the said letter and Form 1001 or 4224 and Form
W-8 or X-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any
such letter or form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent
letter and form previously delivered by it to the Borrower, and
such extensions or renewals thereof as may reasonably be
requested by the Borrower, certifying in the case of a Form 1001
or 4224 that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United
States federal income taxes, unless in any such cases an event
(including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such letter or form with respect to
it and such Lender advises the Borrower that it is not capable of
receiving payments without any deduction or withholding of United
States federal income tax, and in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding
tax.
(c) Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its Domestic Lending
Office or Eurodollar Lending Office, as the case may be) to avoid
or to minimize any amounts which might otherwise be payable
pursuant to this subsection; provided, however, that such efforts
shall not cause the imposition on such Lender of any additional
costs or legal or regulatory burdens deemed by such Lender to be
material.
(d) The agreements in this subsection shall survive
the termination of this Agreement and the payment of the Notes
and all other amounts payable hereunder.
2.18 Extension of Termination Date, Replacement of Exiting
Lender. The Borrower may, at any time prior to the date which is
thirty days prior to the then Termination Date, by written notice
to the Agent (which notice the Agent shall promptly transmit to
each Lender), request that the Termination Date be extended.
Each Lender shall respond to such request not earlier than the
fifteenth day after the date of the Borrower's notice to the
Agent (such fifteenth day, the "First Response Date") and not
later than the twenty-ninth day after the date of such notice
(the "Last Response Date"), with the failure of any Lender to
respond being deemed to be a negative response. If and only if
the Majority Lenders respond affirmatively to such request on or
before the Last Response Date, the Agent shall so advise the
Borrower, whereupon the Borrower shall immediately determine, and
so advise the Agent, either (a) not to have the Termination Date
extended or (b) to have the Termination Date extended, in which
case the Termination Date shall be extended as to those Lenders
that have agreed to such extension until the date which is 364
days after the First Response Date. In the event that the
Majority Lenders agree to extend the Termination Date, but one or
more Lenders (each an "Exiting Lender") do not agree to such
extension, the Borrower shall, on or before the original
Termination Date, either (i) provide, with the consent of the
Agent (which consent shall not be unreasonably withheld), another
financial institution to acquire, pursuant to subsection 8.7(d),
the Commitment of such Exiting Lender and all amounts owing to
such Exiting Lender in respect of Committed Rate Loans under this
Agreement or (ii) prepay, in accordance with the terms and
provisions of the Release to which such Lender shall be party,
the outstanding Committed Rate Loans of such Exiting Lender in
full, (together with all other amounts owing to such
Exiting Lender hereunder (other than Bid Loans of such Exiting
Lender), including, without limitation, amounts payable pursuant
to subsection 2.16), and upon such prepayment, terminate the
Commitment of such Exiting Lender. The Termination Date may be
extended for up to four successive periods pursuant to this
subsection 2.18.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to
make the Loans herein provided for, the Borrower hereby
represents and warrants to the Agent and to each Lender that:
3.1 Financial Condition. The consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as at December 31,
1992 and the related consolidated statements of income and of
cash flows for the fiscal year ended on such date, reported on by
Arthur Andersen & Co., copies of which have heretofore been
furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and
its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated
cash flows for the fiscal year then ended. All such financial
statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as disclosed therein).
Neither the Borrower nor any of its consolidated Subsidiaries
had, at the date of the balance sheet referred to above, any
material Guarantee Obligation, contingent liabilities or
liability for taxes, long-term lease or unusual forward or
long-term commitment, including, without limitation, any interest
rate or foreign currency swap or exchange transaction, which is
not reflected in the foregoing statements or in the notes
thereto.
3.2 No Change. Since December 31, 1992 there has been no
development or event which has had a Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Significant Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate or
partnership power and authority and the legal right to own and
operate all its material property, to lease the material property
it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation
or partnership and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property
or the conduct of its business requires such qualification except
to the extent that the failure to so qualify or be in good
standing would not, in the aggregate, have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith would
not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable
Obligations. The Borrower has full power and authority and the
legal right to make, deliver and perform this Agreement and has
taken all necessary action to authorize the execution, delivery
and performance of this Agreement by the Borrower. No consent or
authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the
execution, delivery or performance of this Agreement or the Notes
by the Borrower or with the validity or enforceability of this
Agreement or the Notes against the Borrower. This Agreement has
been duly executed and delivered on behalf of the Borrower. This
Agreement constitutes a legal, valid and binding obligation of
the Borrower enforceable against the Borrower in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and
by general equitable principles (whether enforcement is sought by
proceedings in equity or at law). The Borrower has full power
and authority and the legal right to make, deliver and perform
the Notes and to borrow hereunder and has taken all necessary
action to authorize the borrowings contemplated by this Agreement
on the terms and conditions of this Agreement and the Notes and
to authorize the execution, delivery and performance of the
Notes. On the Closing Date, each Committed Rate Note and Grid
Bid Loan Note, and on the date of delivery thereof, each
Individual Bid Loan Note, will have been duly executed and
delivered on behalf of the Borrower and will constitute a legal,
valid and binding obligation of the Borrower enforceable against
the Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by
proceedings in equity or at law).
3.5 No Legal Bar; No Default. The execution, delivery and
performance of this Agreement and the Notes, the borrowings
hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any Contractual Obligation of the
Borrower or of any of its Subsidiaries, and will not result in,
or require, the creation or imposition of any Lien on any of its
or their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation. Neither the
Borrower nor any of its Subsidiaries is in default under or with
respect to any of its Contractual Obligations in any respect
which would reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is
continuing.
3.6 No Material Litigation. Except as set forth on
Schedule 3.6, no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to
the best knowledge of the Borrower, threatened by or against the
Borrower or any of its Subsidiaries or against any of its or
their respective properties or revenues (a) with respect to this
Agreement or the Notes or any Loan or any of the transactions
contemplated hereby, or (b) which would reasonably be expected to
have a Material Adverse Effect.
3.7 Investment Company Act. The Borrower is not an
"investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of
1940, as amended.
3.8 Federal Regulations. No part of the proceeds of any
Loan hereunder will be used directly or indirectly for any
purpose which violates, or which would be inconsistent with, the
provisions of Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System as now and from time to time
hereafter in effect.
3.9 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the
Code or Section 302 of ERISA) has occurred during the five-year
period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied
in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has
occurred resulting in any liability that has remained
underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period. Except for the
Supplemental Executive Retirement Plan, the present value of all
accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by an
amount which would reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Commonly Controlled
Entity is currently subject to any liability for a complete or
partial withdrawal from a Multiemployer Retirement Plan.
3.10 Environmental Matters. Except to the extent that all
of the following, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect:
(a) To the best knowledge of the Borrower, the
facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not
contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i)
constitute or constituted a violation of, or (ii) could give rise
to liability under, any Environmental Law.
(b) To the best knowledge of the Borrower, the
Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance,
in all material respects with all applicable Environmental Laws,
and there is no contamination at, under or about the Properties
or violation of any Environmental Law with respect to the
Properties or the business operated by the Borrower or any of its
Subsidiaries (the "Business").
(c) Neither the Borrower nor any of its Subsidiaries
has received any notice of violation, alleged violation, non-
compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business, nor does the
Borrower have knowledge or reason to believe that any such notice
will be received or is being threatened.
(d) To the best knowledge of the Borrower, Materials
of Environmental Concern have not been transported or disposed of
from the Properties in violation of, or in a manner or to a
location which could give rise to liability under, any
Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on or
under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental
Law.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which the
Borrower or any Subsidiary is or will be named as a party with
respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect
to the Properties or the Business.
(f) To the best knowledge of the Borrower, there has
been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from
or related to the operations of the Borrower or any Subsidiary in
connection with the Properties or otherwise in connection with
the Business, in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws.
3.11 Purpose of Loans. The proceeds of the Loans will be
used by the Borrower for its general corporate and working
capital purposes, including, without limitation, additions to
working capital, capital expenditures, acquisitions, stock
repurchases and commercial paper back-up. This Agreement will
replace the Existing Facility.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The obligation of each
Lender to make its initial Loan hereunder is subject to the
satisfaction of the following conditions precedent:
(a) Execution of Agreement. The Agent shall have
received one or more counterparts of this Agreement, executed by
a duly authorized officer of each party hereto.
(b) Secretary's Certificate of the Borrower. The
Agent shall have received, with a counterpart for each Lender, a
certificate of the Secretary or Assistant Secretary of the
Borrower dated the Closing Date, substantially in the form of
Exhibit J with appropriate insertions and attachments.
(c) Legal Opinion of Counsel to the Borrower. The
Agent shall have received, with a copy for each Lender, an
opinion of Louis L. Hoynes, Jr., Senior Vice President and
General Counsel of the Borrower, dated the Closing Date and
addressed to the Agent and the Lenders, substantially in the form
of Exhibit K. Such opinion shall also cover such other matters
incident to the transactions contemplated by this Agreement as
the Agent shall reasonably require.
(d) Fees. The Agent shall have received all fees, if
any, owing pursuant to subsection 2.4.
(e) Termination of Existing Facility. The Agent shall
have received evidence satisfactory to it that all commitments
under the Existing Facility have been terminated and all amounts
owing thereunder, if any, have been paid in full.
(f) Additional Matters. All other documents and legal
matters in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the
Agent and its counsel.
4.2 Conditions to All Loans. The obligation of each Lender
to make any Loan to be made by it hereunder (including the
initial Loan to be made by it hereunder) is subject to the
satisfaction of the following conditions precedent on the date of
making such Loan:
(a) Representations and Warranties. The
representations and warranties made by the Borrower herein or
which are contained in any certificate furnished at any time
under or in connection herewith shall be true and correct in all
material respects on and as of the date of such Loan as if made
on and as of such date.
(b) No Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing on
such date or after giving effect to the Loan to be made on such
date unless such Default or Event of Default shall have been
waived in accordance with this Agreement.
(c) Additional Conditions to Bid Loans. If such Loan
is made pursuant to subsection 2.2:
(i) all conditions set forth in such subsection
shall have been satisfied;
(ii) the Agent shall have received for the
account of each Lender a Grid Bid Loan Note conforming to the
requirements hereof and executed by a duly authorized officer of
the Borrower, and the Agent shall promptly forward such Notes to
the appropriate Lenders; and
(iii) the Agent shall have received, with a copy
for each Lender, an opinion of the General Counsel of the
Borrower, dated the date of making such Loan and addressed to the
Agent and the Lenders, which shall cover matters in respect of
the execution of the Grid Bid Loan Notes and Individual Bid Loan
Notes in accordance with paragraph 3 of Exhibit K hereto and
otherwise confirm the opinions rendered in the legal opinion
delivered pursuant to subsection 4.1(c) on the Closing Date.
(d) Additional Conditions to Committed Rate Loans. If
such Loan is made pursuant to subsection 2.1:
(i) all conditions set forth in such subsection
shall have been satisfied;
(ii) the Agent shall have received for the
account of each Lender a Committed Rate Note conforming to the
requirements hereof and executed by a duly authorized officer of
the Borrower, and the Agent shall promptly forward such Notes to
the appropriate Lenders; and
(iii) the Agent shall have received, with a copy
for each Lender, an opinion of the General Counsel of the
Borrower, dated the date of making such Loan and addressed to the
Agent and the Lenders, which shall cover matters in respect of
the execution of the Committed Rate Notes in accordance with
paragraph 3 of Exhibit K hereto and otherwise confirm the
opinions rendered in the legal opinion
delivered pursuant to subsection 4.1(c) on the Closing Date.
Each acceptance by the Borrower of a Loan shall be deemed to
constitute a representation and warranty by the Borrower as of
the date of such Loan that the applicable conditions in
paragraphs (a), (b) and (c) of this subsection have been
satisfied.
4.3 Conditions to All Committed Rate Loans. The obligation
of each Lender to make any Committed Rate Loan to be made by it
hereunder (including the initial Committed Rate Loan to be made
by it hereunder) is subject to receipt by the Agent of a notice
of borrowing from the Borrower in accordance with subsection 2.1.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid or any
other amount is owing to the Agent or any Lender hereunder, the
Borrower shall and, in the case of subsections 5.3, 5.4, 5.5 and
5.6, shall cause each of its Significant Subsidiaries to, and in
the case of subsections 5.7 and 5.8 shall cause each of its
Subsidiaries to:
5.1 Financial Statements. Furnish to the Agent (with a
sufficient number of copies for each Lender, which the Agent
shall promptly furnish to each Lender):
(a) as soon as available, but in any event within 120
days after the end of each fiscal year of the Borrower, a copy of
the consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the
related consolidated statements of income and retained earnings
and of cash flows of the Borrower and its consolidated
Subsidiaries for such year, setting forth in each case in
comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification indicating that the scope of the audit was
inadequate to permit such independent certified public
accountants to certify such financial statements without such
qualification, by Arthur Andersen & Co. or other firm of
independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later
than 60 days after the end of each of the first three quarterly
periods of each fiscal year of the Borrower, a copy of the
Borrower's Report on Form 10-Q for such quarter, as filed with
the Securities Exchange Commission; all such financial statements
to be complete and correct in all material respects and to be
prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as approved by such accountants or
Responsible Officer, as the case may be, and disclosed therein).
5.2 Certificates; Other Information. Furnish to the Agent
(with a sufficient number of copies for each Lender, which the
Agent shall promptly furnish to each Lender):
(a) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a) above, a certificate
of the independent certified public accountants reporting on such
financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a) above and the Report
on Form 10-Q for the Borrower's second fiscal quarter referred to
in subsection 5.1(b) above, a certificate of a Responsible
Officer stating that, to the best of such Responsible Officer's
knowledge, the Borrower during such period observed or performed
all of its covenants and other agreements, and satisfied every
material condition, contained in this Agreement and in the Notes
to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate;
(c) within thirty days after the same are sent, copies
of all reports (not otherwise provided pursuant to subsection
5.1) and other financial information which the Borrower sends to
its stockholders, and within thirty days after the same are
filed, copies of all financial statements and reports which the
Borrower may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(d) promptly, such additional financial and other
information as the Agent, on behalf of any Lender, may from time
to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent,
as the case may be, all its material obligations of whatever
nature and any additional costs that are imposed as a result of
any failure to so pay, discharge or otherwise satisfy such
obligations, except when the amount or validity of such
obligations and costs is currently being contested in good faith
by appropriate proceedings and reserves in conformity with GAAP
with respect thereto have been provided on the books of the
Borrower or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now
conducted by it and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its businesses; comply with
all Contractual Obligations and Requirements of Law applicable to
it except to the extent that failure to comply therewith would
not, in the aggregate, have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and
condition; maintain with financially sound and reputable
insurance companies insurance on all its property in at least
such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in
the same or a similar business; and furnish to each Lender, upon
written request, full information as to the insurance carried;
provided, however, that the Borrower may maintain self insurance
plans to the extent companies of similar size and in similar
businesses do so.
5.6. Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which
full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and
transactions in relation to its businesses and activities; and
permit, during regular business hours and upon reasonable notice
by the Agent, the Agent or any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its
books and records (other than materials protected by the
attorney-client privilege and materials which the Borrower may
not disclose without violation of a confidentiality obligation
binding upon it) at any reasonable time and as often as may
reasonably be desired, and to discuss the business, operations,
properties and financial and other condition of the Borrower and
its Significant Subsidiaries with officers and employees of the
Borrower and its Significant Subsidiaries and with its
independent certified public accountants.
5.7. Notices. Promptly give notice to the Agent (which
shall promptly transmit such notice to each Lender) of:
(a) the occurrence of any material Default or Event of
Default;
(b) any default or event of default under any
Contractual Obligation of the Borrower or any of its Significant
Subsidiaries which would reasonably be expected to have a
Material Adverse Effect;
(c) any litigation, or any investigation or proceeding
known to the Borrower, affecting the Borrower or any of its
Significant Subsidiaries which would reasonably be expected to
have a Material Adverse Effect;
(d) the following events, as soon as possible and in
any event within 30 days after the Borrower knows or has reason
to know thereof: (i) the occurrence or expected occurrence of
any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in
favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer
Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan; and
(e) any other development or event which would
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied
by a statement of a Responsible Officer setting forth details of
the occurrence referred to therein and stating what action the
Borrower proposes to take with respect thereto.
5.8 Environmental Laws.
(a) Comply with, and ensure compliance by all tenants
and subtenants, if any, with, all applicable Environmental Laws
and obtain and comply in all material respects with and maintain,
and ensure that all tenants and subtenants obtain and comply in
all material respects with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that failure
to do so would not reasonably be expected to have a Material
Adverse Effect;
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to
the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings
would not reasonably be expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the Agent and
the Lenders, and their respective employees, agents, officers and
directors, from and against any and all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent
or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower,
any of its Significant Subsidiaries or the Properties, or any
orders, requirements or demands of Governmental Authorities
related thereto,
including, without limitation, attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs
and litigation expenses, except to the extent that any of the
foregoing arise out of the gross negligence or willful misconduct
of the party seeking indemnification therefor. The agreements in
this paragraph shall survive repayment of the Notes and all other
amounts payable hereunder.
SECTION 6 EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Borrower shall fail to pay any principal on
any Note when due in accordance with the terms thereof or hereof
on the maturity date thereof; or the Borrower shall fail to pay
any interest on any Note or any fee or other amount payable
hereunder when due in accordance with the terms thereof or hereof
and such failure shall continue unremedied for five Business
Days; or
(b) Any representation or warranty made or deemed made
by the Borrower herein or which is contained in any certificate,
document or financial or other statement furnished at any time
under or in connection with this Agreement shall prove to have
been incorrect, false or misleading in any material respect on or
as of the date made or deemed made; or
(c) The Borrower shall default in any material respect
in the observance or performance of any agreement contained in
this Agreement (other than as described in paragraph (a) above),
and such default shall continue unremedied for a period of 30
days; or
(d) The Borrower or any of its Significant
Subsidiaries shall (i) default in any payment of principal of or
interest on any Indebtedness (other than the Notes) in a
principal amount outstanding of at least $100,000,000 in the
aggregate for the Borrower and its Significant Subsidiaries or in
the payment of any matured Guarantee Obligation in a principal
amount outstanding of at least $100,000,000 in the aggregate for
the Borrower and its Significant Subsidiaries beyond the period
of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness or
Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition
relating to any such Indebtedness in a principal amount
outstanding of at least $100,000,000 in the aggregate for the
Borrower and its Significant Subsidiaries or Guarantee Obligation
in a principal amount outstanding of at least $100,000,000 in the
aggregate for the Borrower and its Significant Subsidiaries or
contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due
prior to its stated maturity or such Guarantee Obligation to
become payable; or
(e) (i) The Borrower or any of its Significant
Subsidiaries shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or
other similar official for it or for all or any substantial part
of its assets, or the Borrower or any such Significant Subsidiary
shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against the Borrower or any such
Significant Subsidiary any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded
for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any such Significant Subsidiary any case,
proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry
of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) the Borrower or any such
Significant Subsidiary shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any such Significant Subsidiary shall
generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or
(f) One or more judgments or decrees shall be entered
against the Borrower or any of its Significant Subsidiaries
involving in the aggregate a liability (not paid when due or
covered by insurance) of $100,000,000 or more and all such
judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry
thereof; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975
of the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower
or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event
or commencement of proceedings or appointment of a Trustee is, in
the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes
of Title IV of ERISA, (v) the Borrower, any of its Significant
Subsidiaries or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur
any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, any Multiemployer Plan or (vi)
any other event or condition shall occur or exist; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could
have a material Adverse Effect; or
(h) Either (i) a "person" or a "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934) becomes the "beneficial owner" (as defined in Rule
13d-3 under the Securities Exchange Act of 1934) of more than 25%
of the then outstanding voting stock of the Borrower or (ii) a
majority of the Board of Directors of the Borrower shall consist
of individuals who are not Continuing Directors; "Continuing
Director" means, as of any date of determination, (i) an
individual who on the date two years prior to such determination
date was a member of the Borrower's Board of Directors and (ii)
any new Director whose nomination for election by the Borrower's
shareholders was approved by a vote of at least 75% of the
Directors then still in office who either were Directors on the
date two years prior to such determination date or whose
nomination for election was previously so approved;
then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (e) above,
automatically the Commitments shall immediately terminate and the
Loans (with accrued interest thereon), and all other amounts
owing under this Agreement and the Notes shall immediately become
due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken:
(i) with the consent of the Required Lenders, the Agent may,
or upon the request of the Required Lenders, the Agent shall, by
notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Agent may,
or upon the request of the Required Lenders, the Agent shall, by
notice of default to the Borrower, declare the Loans (with
accrued interest thereon) and all other amounts owing under this
Agreement and the Notes to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section 6,
presentment, demand, protest and all other notices of any kind
are hereby expressly waived.
SECTION 7 THE AGENT
7.1 Appointment. Each Lender hereby irrevocably designates
and appoints Chemical Bank as the Agent of such Lender under this
Agreement, and each such Lender irrevocably authorizes Chemical
Bank, as the Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and to exercise
such powers and perform such duties as are expressly delegated to
the Agent by the terms of this Agreement, together with such
other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise exist against the
Agent.
7.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall
not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by it with reasonable care.
Without limiting the foregoing, the Agent may appoint CBASC as
its agent to perform the functions of the Agent hereunder
relating to the advancing of funds to the Borrower and
distribution of funds to the Lenders and to perform such other
related functions of the Agent hereunder as are reasonably
incidental to such functions.
7.3 Exculpatory Provisions. Neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or
Affiliates (including, without limitation, CBASC) shall be (i)
liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or
warranties made by the Borrower or any officer thereof contained
in this Agreement or in any certificate, report, statement or
other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the Notes or for any failure of
the Borrower to perform its obligations hereunder or thereunder.
Neither the Agent nor CBASC shall be under any obligation to any
Lender to ascertain or to inquire as to the observance or
performance by the Borrower of any of the agreements contained
in, or conditions of, this Agreement (other than the receipt by
the Agent of the documents specified in subsection 4.1), or to
inspect the properties, books or records of the Borrower.
7.4 Reliance by Agent. Each of the Agent and CBASC shall
be entitled to rely, and shall be fully protected in relying,
upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or
conversation reasonably believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Agent.
The Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless (a) a written notice of
assignment, negotiation or transfer thereof shall have been filed
with the Agent and (b) the Agent shall have received the written
agreement of such assignee to be bound hereby as fully and to the
same extent as if such assignee were an original Lender party
hereto, in each case in form satisfactory to the Agent. The
Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such
advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and
the Notes in accordance with a request of the Required Lenders,
and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future
holders of the Notes.
7.5 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Agent has received notice
from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give notice thereof to
the Lenders. The Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed
by the Required Lenders; provided, however, that unless and until
the Agent shall have received such directions, the Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
7.6 Non-Reliance on Agent, Other Lenders and CBASC. Each
Lender expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representation or warranty to it and that
no act by the Agent hereinafter taken, including any review of
the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent and CBASC that it has,
independently and without reliance upon the Agent or any other
Lender or CBASC, and based on such documents and information as
it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial
and other condition and creditworthiness of the Borrower and made
its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent, CBASC 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 analysis, appraisals and decisions in taking or not taking
action under this Agreement, and to make such investigation as it
deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of
the Borrower. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information
concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the
Borrower which may come into the possession of the Agent or any
of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
7.7 Indemnification. The Lenders agree to indemnify each
of the Agent and CBASC in their respective capacities hereunder
(to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably
according to their respective Commitment Percentages in effect on
the date on which indemnification is sought under this
subsection, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever
which may at any time (including, without limitation, at any time
following the payment of the Notes) be imposed on, incurred by or
asserted against the Agent or CBASC in any way relating to or
arising out of this Agreement, the Notes or any documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken
or omitted by the Agent or CBASC under or in connection with any
of the foregoing; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the
Agent's or CBASC's gross negligence or willful misconduct. The
agreements in this subsection shall survive the termination of
this Agreement and payment of the Notes and all other amounts
payable hereunder.
7.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the
Agent were not the Agent hereunder. With respect to its Loans
made or renewed by it and any Note issued to it, the Agent shall
have the same rights and powers under this Agreement as any
Lender and may exercise the same as though it were not the Agent,
and the terms "Lender" and "Lenders" shall include the Agent in
its individual capacity.
7.9 Successor Agent. The Agent may resign as Agent upon 15
days' notice to the Borrower and the Lenders. If the Agent shall
resign as Agent under this Agreement and the Notes, then the
Required Lenders shall appoint from among the Lenders a successor
agent for the Lenders, which successor agent shall be approved by
the Borrower, whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent, and the term "Agent"
shall mean such successor agent effective upon such appointment
and approval, and the former Agent's rights, powers and duties as
Agent shall be terminated, without any other or further act or
deed on the part of such former Agent or any of the parties to
this Agreement or any holders of the Notes. After any retiring
Agent's resignation as Agent, the provisions of this subsection
shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement.
SECTION 8 MISCELLANEOUS
8.1 Amendments and Waivers. Neither this Agreement, any
Note, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions
of this subsection. The Required Lenders may, or, with the
written consent of the Required Lenders, the Agent may, from time
to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the Notes for the
purpose of adding any provisions to this Agreement or the Notes
or changing in any manner the rights of the Lenders or of the
Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Agent, as the case may
be, may specify in such instrument, any of the requirements of
this Agreement or the Notes or any Default or Event of Default
and its consequences; provided, however, that no such waiver and
no such amendment, supplement or modification shall (i) reduce
the amount or extend the scheduled date of maturity of any Note
or of any installment thereof, or reduce the
stated rate of any interest or fee payable hereunder or extend
the scheduled date of any payment thereof or increase the amount
or extend the expiration date of any Lender's Commitment, in each
case without the consent of each Lender affected thereby, or (ii)
amend, modify or waive any provision of this subsection or reduce
the percentage specified in the definition of Required Lenders or
Majority Lenders, or consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this
Agreement, in each case without the written consent of all the
Lenders, or (iii) amend, modify or waive any provision of Section
7 without the written consent of the then Agent. Any such waiver
and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Agent and all future holders of the
Notes. In the case of any waiver, the Borrower, the Lenders and
the Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes, and any Default or
Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent
thereon.
8.2 Removal of a Lender by the Borrower. The Borrower may
at any time, in its sole discretion, elect to remove any Lender
(a "Removed Lender") from the syndicate of Lenders under this
Agreement by delivering notice thereof to such Lender and the
Agent. Any such removal by the Borrower of a Lender shall be
effective on the date set forth in such notice, provided that the
Borrower shall have either (i) provided, with the consent of the
Agent (which consent shall not be unreasonably withheld), another
financial institution to acquire, pursuant to subsection 8.7(d),
the Commitment of such Removed Lender and all amounts owing to
such Removed Lender in respect of Committed Rate Loans under this
Agreement or (ii) prepaid, in accordance with the terms and
provisions of the Release to which such Lender shall be party,
the outstanding Committed Rate Loans of such Removed Lender in
full, (together with all other amounts owing to such Removed
Lender hereunder (other than Bid Loans of such Removed Lender),
including, without limitation, amounts payable pursuant to
subsection 2.16), and upon such prepayment, terminated the
Commitment of such Removed Lender.
8.3 Notices. Except as otherwise provided in Section 2,
all notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand,
or 3 Business Days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Borrower and the Agent,
and as set forth on the signature pages hereof in the case of the
Lenders, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the
Notes:
The Borrower:
American Home Products Corporation
685 Third Avenue
New York, New York 10017-9085
Attention: Treasurer
Telecopier: (212) 875-5771
Telephone: (212) 878-8649
The Agent:
Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Robert Kellas
Telecopier: (212) 270-2112
Telephone: (212) 270-3560
CBASC:
Chemical Bank Agency Services
Corporation
140 East 45th Street
New York, New York 10017-3162
Attention: Janet Belden
Telecopier: (212) 622-0001
Telephone: (212) 622-0011;
provided, however, that any notice, request or demand to or upon
the Agent or the Lenders pursuant to subsections 2.1, 2.2, 2.3,
2.5, 2.6 and 2.12 shall not be effective until received.
8.4 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Agent or any
Lender, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges
provided by law.
8.5 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any
document, certificate or statement delivered pursuant hereto or
in connection herewith shall survive the execution and delivery
of this Agreement and the Notes and the making of the Loans.
8.6 Payment of Expenses and Taxes. The Borrower agrees (a)
to pay or reimburse the Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the
development, preparation, printing and execution of, and any
amendment, supplement or modification to, this Agreement
and the Notes and any other documents prepared in connection
herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of
counsel to the Agent, (b) to pay or reimburse each Lender and the
Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this
Agreement, the Notes and any such other documents, including,
without limitation, the fees and disbursements of counsel to the
Agent and to the several Lenders, and (c) on demand, to pay,
indemnify, and hold each Lender and the Agent harmless from, any
and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of,
this Agreement, the Notes and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Agent harmless
from and against, any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the Notes and any such other
documents (all the foregoing, collectively, the "indemnified
liabilities"); provided, however, that the Borrower shall have no
obligation hereunder to the Agent or any Lender with respect to
indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the Agent or any such Lender, (ii) legal
proceedings commenced against the Agent or any such Lender by any
security holder or creditor thereof arising out of and based upon
rights afforded such security holder or creditor solely in its
capacity as such or (iii) legal proceedings commenced against any
Lender by any other Lender or the Agent. The agreements in this
subsection shall survive repayment of the Notes and all other
amounts payable hereunder.
8.7 Successors and Assigns; Participations; Purchasing
Lenders. 1. This Agreement shall be binding upon and inure to
the benefit of the Borrower, the Lenders, the Agent, all future
holders of the Notes and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its
rights or obligations under this Agreement without the prior
written consent of each Lender.
(a) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such
Lender, or any other interest of such Lender hereunder. In the
event of any such sale by a Lender of participating interests to
a Participant, such Lender's obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement. The Borrower agrees that if amounts outstanding under
this Agreement and the Notes are due and unpaid, or shall have
been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be
deemed to have, to the extent permitted by applicable law, the
right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Note to the same
extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement or any Note;
provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 8.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees
that each Participant shall be entitled to the benefits of
subsections 2.15, 2.16, 2.17 and 8.6 with respect to its
participation in the Commitments and the Loans outstanding from
time to time; provided, that no Participant shall be entitled to
receive any greater amount pursuant to such subsections than the
transferor Lender would have been entitled to receive in respect
of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred. Each
Lender agrees that the participation agreement (or any other
document) pursuant to which any Participant acquires its
participating interest may afford voting rights to such
Participant only with respect to matters requiring the consent of
all of the Lenders hereunder.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time assign to one or more banks or other entities
("Bid Loan Assignees") any Bid Loan owing to such Lender and any
Individual Bid Loan Note held by such Lender evidencing such Bid
Loan, pursuant to a Bid Loan Assignment executed by the assignor
Lender and the Assignee. Upon such execution, from and after the
Transfer Effective Date specified in such Bid Loan Assignment,
the Bid Loan Assignee shall, to the extent of the assignment
provided for in such Bid Loan Assignment and to the extent
permitted by applicable law, be deemed to have the same rights
and benefits with respect to such Bid Loans and Individual Bid
Loan Note and the same rights of setoff and obligation to share
pursuant to subsection 8.8 as it would have had if it were a
Lender hereunder; provided, that unless such Bid Loan Assignment
shall otherwise specify and a copy of such Bid Loan Assignment
shall have been delivered to the Agent for its acceptance and
recording in the Register in accordance with subsection 8.7(f),
the assignor Lender shall act as collection agent for the Bid
Loan Assignee, and the Agent shall pay all amounts received from
the Borrower which are allocable to the assigned Bid Loan or Bid
Note directly to the assignor Lender without any further
liability to the Bid Loan Assignee. The Bid Loan Assignee shall
not, by virtue of such Bid Loan Assignment, become a party to
this Agreement or have any rights to consent to or refrain from
consenting to any amendment, waiver or other modification of any
provision of this Agreement or any related document; provided,
that (x) the assignor Lender and the Bid Loan Assignee may, in
their discretion, agree between themselves upon the manner in
which the assignor Lender will exercise its rights under this
Agreement and any related document, and (y) if a copy of such Bid
Loan Assignment shall have been delivered to the Agent for its
acceptance and recording in the Register in accordance with
subsection 8.7(f), neither the principal amount of, the interest
rate on, nor the maturity date of any Bid Loan or Bid Note
assigned to a Bid Loan Assignee will be modified without the
written consent of such Bid Loan Assignee.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to any Lender or any affiliate thereof and,
with the consent of the Borrower, in its absolute discretion, and
the Agent (which consent shall not be unreasonably withheld), to
one or more additional banks or financial institutions
("Purchasing Lenders"), all or any part of its rights and
obligations under this Agreement and the Notes in minimum amounts
of $25,000,000 (or, if less, the entire amount of such Lender's
obligations) pursuant to a Commitment Transfer Supplement,
executed by such Purchasing Lender, such transferor Lender (and,
in the case of a Purchasing Lender that is not then a Lender or
an affiliate thereof, by the Borrower and the Agent), and
delivered to the Agent for its acceptance and recording in the
Register. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date specified
in such Commitment Transfer Supplement, (x) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in
such Commitment Transfer Supplement, have the rights and
obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the transferor Lender thereunder shall, to the
extent provided in such Commitment Transfer Supplement, be
released from its obligations under this Agreement (and, in the
case of a Commitment Transfer Supplement covering all or the
remaining portion of a transferor Lender's rights and obligations
under this Agreement, such transferor Lender shall cease to be a
party hereto). Such Commitment Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing
Lender and the resulting adjustment of Commitment Percentages
arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor Lender
under this Agreement and the Notes. On or prior to the Transfer
Effective Date specified in such Commitment Transfer Supplement,
the Borrower, at its own expense, shall execute and deliver to
the Agent in exchange for the Committed Rate Note delivered to
the Agent pursuant to such Commitment Transfer Supplement a new
Committed Rate Note to the order of such Purchasing Lender in an
amount equal to the Commitment assumed by it pursuant to such
Commitment Transfer Supplement and a new Grid Bid Loan Note to
the order of such Purchasing Lender in an amount equal to the
aggregate Commitments and, unless the transferor Lender has not
retained a Commitment hereunder, a new Committed Rate Note to the
order of the transferor Lender in an amount equal to the
Commitment retained by it hereunder. Such new Committed Rate
Note
and Grid Bid Loan Note shall be dated the Closing Date and shall
otherwise be in the form of the Committed Rate Note and Grid Bid
Loan Note replaced thereby. The Committed Rate Note and Grid Bid
Loan Note, if any, surrendered by the transferor Lender shall be
returned by the Agent to the Borrower marked "cancelled".
(d) The Agent shall maintain at its address referred
to in subsection 8.3 a copy of each Bid Loan Assignment and each
Commitment Transfer Supplement delivered to it and a register
(the "Register") for the recordation of (i) the names and
addresses of the Lenders and the Commitment of, and principal
amount of the Loans owing to, each Lender from time to time, and
(ii) with respect to each Bid Loan Assignment delivered to the
Agent, the name and address of the Bid Loan Assignee and the
principal amount of each Bid Loan owing to such Bid Loan
Assignee. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender or Bid Loan Assignee at
any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a Bid Loan Assignment executed
by an assignor Lender and a Bid Loan Assignee, together with
payment to the Agent (by the assignor Lender or the Bid Loan
Assignee, as agreed between them) of a registration and
processing fee of $1,000, the Agent shall (i) accept such Bid
Loan Assignment, (ii) record the information contained therein in
the Register and (iii) give prompt notice of such acceptance and
recordation to the assignor Lender, the Bid Loan Assignee and the
Borrower. Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Lender and a Purchasing Lender (and, in
the case of a Purchasing Lender that is not then a Lender or an
affiliate thereof, by the Borrower and the Agent) together with
payment to the Agent (by the transferor Lender or the Purchasing
Lender, as agreed between them) of a registration and processing
fee of $3,000 for each Purchasing Lender listed in such
Commitment Transfer Supplement, and the Notes subject to such
Commitment Transfer Supplement, the Agent shall (i) accept such
Commitment Transfer Supplement, (ii) record the information
contained therein in the Register and (iii) give prompt notice of
such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to
any Participant, Bid Loan Assignee or Purchasing Lender (each, a
"Transferee") and any prospective Transferee any and all
financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement
or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of
the Borrower and its Affiliates prior to becoming a party to this
Agreement.
(g) If, pursuant to this subsection, any interest in
this Agreement or any Note is transferred to any Transferee which
is organized under the laws of any jurisdiction other than the
United States or any State thereof, the transferor Lender shall
cause such Transferee, concurrently with the effectiveness of
such transfer, (i) to represent to the transferor Lender (for the
benefit of the transferor Lender, the Agent and the Borrower)
that under applicable law and treaties no taxes will be required
to be withheld by the Agent, the Borrower or the transferor
Lender with respect to any payments to be made to such Transferee
in respect of the Loans, (ii) to furnish to the transferor
Lender, the Agent and the Borrower either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001
(wherein such Transferee claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments
hereunder), (iii) to furnish to the transferor Lender, the Agent
and the Borrower either U.S. Internal Revenue Service Form W-8 or
U.S. Internal Revenue Service Form W-9 (wherein such Transferee
claims entitlement to complete exemption from U.S. federal backup
withholding tax on all interest payments hereunder) and (iv) to
agree (for the benefit of the transferor Lender, the Agent and
the Borrower) to provide the transferor Lender, the Agent and the
Borrower a new Form 4224 or Form 1001 and Form W-8 or Form W-9
upon the expiration or obsolescence of any previously delivered
form and comparable statements in accordance with applicable U.S.
laws and regulations and amendments duly executed and completed
by such Transferee, and to comply from time to time with all
applicable U.S. laws and regulations with regard to such
withholding tax exemption and such backup withholding tax
exemption.
(h) Nothing herein shall prohibit any Lender from
pledging or assigning any of its rights under this Agreement
(including, without limitation, any right to payment of principal
and interest under any Note) to any Federal Reserve Bank in
accordance with applicable laws.
8.8 Adjustments; Set-off. (a) Each Lender agrees that if
any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of its Committed Rate Loans, or interest
thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in clause (e) of Section 6,
or otherwise) in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of
such other Lender's Committed Rate Loans, or interest thereon
(except as expressly provided in subsections 2.15(d), 2.18 or
8.2, as the case may be), such benefitted Lender shall purchase
for cash from the other Lenders a participating interest in such
portion of each such other Lender's Committed Rate Loan, or shall
provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to
cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Committed Rate
Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as
fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the
Lenders provided by law (including, without limitation, other
rights of set-off), each Lender shall have the right, without
prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law,
upon the occurrence of any Event of Default, to setoff and
appropriate and apply any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured
or unmatured, at any time held or owing by such Lender or any
branch or agency thereof to or for the credit or the account of
the Borrower, or any part thereof in such amounts as such Lender
may elect, against and on account of the obligations and
liabilities of the Borrower to such Lender hereunder and claims
of every nature and description of such Lender against the
Borrower, in any currency, whether arising hereunder, under the
Notes or under any documents contemplated by or referred to
herein or therein, as such Lender may elect, whether or not such
Lender has made any demand for payment and although such
obligations, liabilities and claims may be contingent or
unmatured. The aforesaid right of set-off may be exercised by
such Lender against the Borrower or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor
of the Borrower, or against anyone else claiming through or
against the Borrower or any such trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver, or
execution, judgment or attachment creditor, notwithstanding the
fact that such right of set-off shall not have been exercised by
such Lender prior to the occurrence of any Event of Default.
Each Lender agrees promptly to notify the Borrower and the Agent
after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
8.9 Table of Contents and Section Headings. The table of
contents and the Section and subsection headings herein are
intended for convenience only and shall be ignored in construing
this Agreement.
8.10 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of
separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Agent.
8.11 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
8.12 Integration. This Agreement and the Notes represent
the agreement of the Borrower, the Agent and the Lenders with
respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Agent, the
Borrower or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the Notes.
8.13 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND
THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.14 Consent to Jurisdiction and Service of Process;
Waivers. (a) All judicial proceedings brought against the
Borrower with respect to this Agreement or any Note may be
brought in any state or federal court of competent jurisdiction
in the State of New York, and, by execution and delivery of this
Agreement, the Borrower accepts, for itself and in connection
with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and
irrevocably agrees to be bound by any final judgment rendered
thereby in connection with this Agreement from which no appeal
has been taken or is available. The Borrower irrevocably agrees
that all process in any such proceedings in any such court may be
effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage
prepaid, to it at its address set forth in subsection 8.3 or at
such other address of which the Agent shall have been notified
pursuant thereto, such service being hereby acknowledged by the
Borrower to be effective and binding service in every respect.
Each of the Borrower, the Agent and the Lenders irrevocably
waives any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum
non conveniens which it may now or hereafter have to the bringing
of any such action or proceeding in any such jurisdiction.
Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of any
Lender to bring proceedings against the Borrower in the court of
any other jurisdiction.
(b) Each of the Borrower, the Agent and the Lenders
hereby irrevocably and unconditionally waives, to the maximum
extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this
subsection any special, exemplary, punitive or consequential
damages.
8.15 Confidentiality. Each of the Lenders agrees that it
will use its best efforts not to disclose without the prior
consent of the Borrower (other than to its employees, auditors or
counsel or to another Lender) any information with respect to the
Borrower which is furnished pursuant to this Agreement, the Notes
or any documents contemplated by or referred to herein or therein
and which is designated by the Borrower to the Lenders in writing
as confidential, except that any Lender may disclose any such
information (a) as has become generally available to the public
other than by a breach of this Section 8.15, (b) as may be
required or appropriate in any report, statement or testimony
submitted to any municipal, state or federal regulatory body
having or claiming to have jurisdiction over such Lender or to
the Federal Reserve Board or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required
or appropriate in response to any summons or subpoena or any law,
order, regulation or ruling applicable to such Lender, or (d) to
any prospective participant or assignee in connection with any
contemplated transfer pursuant to Section 8.7, provided that such
prospective transferee shall have been made aware of this Section
8.15 and shall have agreed to be bound by its provisions as if it
were a party to this Agreement.
8.16 Acknowledgements. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes;
(b) neither the Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in
connection with this Agreement and the relationship between Agent
and Lenders, on one hand, and the Borrower, on the other hand, in
connection herewith is solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among
the Borrower and the Lenders.
8.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR THE NOTES AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York
by its proper and duly authorized officers as of the day and year
first above written.
AMERICAN HOME PRODUCTS CORPORATION
By:/s/John R. Considine
Title:
CHEMICAL BANK,
as Agent and as a Lender
By:/s/ Nancy Mistretta
Title:Managing Director
$75,000,000 7.5% CHEMICAL BANK
Domestic Lending Office:
CHEMICAL BANK
270 Park Avenue
New York, New York 10017
Attn: Ms. Elizabeth Chow
Eurodollar Lending Office:
CHEMICAL BANK
270 Park Avenue
New York, New York 10017
Attn: Ms. Elizabeth Chow
$75,000,000 7.5% CIBC, INC.
By:/s/ Illegible
Title: Vice President
Domestic Lending Office:
CIBC, Inc.
Two Paces West,
2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
Attn: Ms. Kim Swink
Eurodollar Lending Office:
CIBC, Inc.
Two Paces West,
2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
Attn: Ms. Kim Swink
Any notice, request or demand in
respect of the Bid Loans shall be
delivered to:
CIBC, Inc.
425 Lexington Avenue
New York, New York 10017
Attn: Ms. Carol Kizzia
$75,000,000 7.5% COMMERZBANK AG, GRAND CAYMAN
BRANCH
By:/s/ Illegible
Title: Vice President
Domestic Lending Office:
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281-1050
Attn: Mr. Andreas Bremer
Eurodollar Lending Office:
Commerzbank AG, Grand Cayman Branch
2 World Financial Center
New York, New York 10281-1050
Attn: Mr. Andreas Bremer
$75,000,000 7.5% J.P. MORGAN DELAWARE
By: /s/ David Morris
Title: Vice President
Domestic Lending Office:
J.P. Morgan Delaware
902 Market Street
Wilmington, Delaware 19801
Attn: Mr. David J. Morris
Eurodollar Lending Office:
J.P. Morgan Delaware
902 Market Street
Wilmington, Delaware 19801
Attn: Mr. David J. Morris
$75,000,000 7.5% WACHOVIA BANK OF GEORGIA, N.A.
By:/s/ Illegible
Title: Vice President
Domestic Lending Office:
Wachovia Corporate Services, Inc.
Carnegie Hall Tower, 37th Floor
152 W. 57th Street
New York, New York 10019
Attn: Ms. Pendleton Gray Whisnant
Eurodollar Lending Office:
Wachovia Corporate Services, Inc.
Carnegie Hall Tower, 37th Floor
152 W. 57th Street
New York, New York 10019
Attn: Ms. Pendleton Gray Whisnant
$50,000,000 5.0% ABN AMRO BANK N.V.
By:/s/ Denise A. Gallegher
/s/ Nancy F. Watkins
Title: Vice President
Group Vice President
Domestic Lending Office:
ABN AMRO Bank N.V.
500 Park Avenue
New York, New York 10022
Attn: Ms. Denise Gallagher
Eurodollar Lending Office:
ABN AMRO Bank N.V.
500 Park Avenue
New York, New York 10022
Attn: Ms. Denise Gallagher
$50,000,000 5.0% BANK OF MONTREAL
By:/s/ Sharron P. Walsh
Title: Director
Domestic Lending Office:
Bank of Montreal/Harris Bank
115 South LaSalle Street
Chicago, Illinois 60603
Attn: Ms. Sharron P. Walsh
Eurodollar Lending Office:
Bank of Montreal/Harris Bank
115 South LaSalle Street
Chicago, Illinois 60603
Attn: Ms. Sharron P. Walsh
$50,000,000 5.0% CITIBANK, N.A.
By:/s/ Hans F. Horn
Title:Vice President
Domestic Lending Office:
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Attn: Mr. Hans Horn
Eurodollar Lending Office:
Citibank, N.A.
399 Park Avenue
New York, New York 10043
Attn: Mr. Hans Horn
$50,000,000 5.0% ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A.
By:/s/ Illegible
Title: Vice President
Domestic Lending Office:
San Paolo Bank
245 Park Avenue
New York, New York 10167
Attn: Mr. Wendell Jones
Eurodollar Lending Office:
San Paolo Bank
245 Park Avenue
New York, New York 10167
Attn: Mr. Wendell Jones
$50,000,000 5.0% NATIONAL WESTMINSTER BANK PLC
By:/s/ Illegible
Title: Vice President
Domestic Lending Office:
National Westminster Bank PLC -
New York Branch
175 Water Street, 21st Floor
New York, New York 10038-4924
Attn: Mr. Robert Passarello
Eurodollar Lending Office:
National Westminster Bank PLC -
Nassau Branch
175 Water Street, 21st Floor
New York, New York 10038-4924
Attn: Mr. Robert Passarello
$50,000,000 5.0% THE SUMITOMO BANK, LIMITED
By:/s/ Illegible
Title:Joint General Manager
Domestic Lending Office:
The Sumitomo Bank, Limited
One World Trade Center
Suite 9651
New York, New York 10048
Attn: U.S. Corporate Department
Eurodollar Lending Office:
The Sumitomo Bank, Limited
One World Trade Center
Suite 9651
New York, New York 10048
Attn: U.S. Corporate Department
$50,000,000 5.0% SWISS BANK CORPORATION, NEW YORK
BRANCH
By:/s/ Colin T. Taylor
Title: Director
By:/s/ Illegible
Title: Associate Director
Domestic Lending Office:
Swiss Bank Corporation, New York
Branch
10 East 50th Street
New York, New York 10022
Attn: Mr. Colin T. Taylor
Eurodollar Lending Office:
Swiss Bank Corporation, Cayman
Islands Branch
c/o Swiss Bank Corporation,
New York Branch
10 East 50th Street
New York, New York 10022
Attn: Mr. Colin T. Taylor
$25,000,000 2.5% BANCA DI ROMA - NEW YORK BRANCH
By:/s/ Illegible
/s/Ralph L. Riehle
Title: Vice President
F.V.P.
Domestic Lending Office:
Banca di Roma - New York Branch
100 Wall Street
New York, New York 10005
Attn: Mr. Ralph L. Riehle
Eurodollar Lending Office:
Banca di Roma - New York Branch
100 Wall Street
New York, New York 10005
Attn: Mr. Ralph L. Riehle
$25,000,000 2.5% THE BOATMAN'S NATIONAL BANK OF
ST. LOUIS
By:/s/ J. David Kennenbeck
Title: Corporate Banking Officer
Domestic Lending Office:
The Boatman's National Bank of
St. Louis
800 Market Street
P.O. Box #236
St. Louis, Missouri 63166-0236
Attn: Mr. J. David Kennebeck
Eurodollar Lending Office:
The Boatman's National Bank of
St. Louis
800 Market Street
P.O. Box #236
St. Louis, Missouri 63166-0236
Attn: Mr. J. David Kennebeck
$25,000,000 2.5% THE CHASE MANHATTAN BANK, N.A.
By:/s/ Robert W. Cook
Title: Managing Director
Domestic Lending Office:
The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
New York, New York 10081
Attn: Mr. Robert W. Cook
Eurodollar Lending Office:
The Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
New York, New York 10081
Attn: Mr. Robert W. Cook
$25,000,000 2.5% CORESTATES BANK, N.A.
By:/s/ James A. Bennett
Title: Senior Vice President
Domestic Lending Office:
CoreStates Bank, N.A.
P.O. Box 7618
1345 Chestnut Street
Philadelphia, Pennsylvania 19101
Attn: Mr. James A. Bennett
Eurodollar Lending Office:
CoreStates Bank, N.A.
P.O. Box 7618
1345 Chestnut Street
Philadelphia, Pennsylvania 19101
Attn: Mr. James A. Bennett
$25,000,000 2.5% CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ Sebastion Rocco
Title: First Vice President
Domestic Lending Office:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Michael Moretti
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By:/s/ Illegible
Title:
Eurodollar Lending Office:
Credit Lyonnais Cayman Island
Branch
c/o Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Attn: Mr. Michael Moretti
$25,000,000 2.5% CRESTAR BANK
By:/s/ Keith A. Hubbard
Title:Senior Vice President
Domestic Lending Office:
Crestar Bank
919 East Main Street
Richmond, Virginia 23219
Attn: Mr. Keith A. Hubbard
Eurodollar Lending Office:
Crestar Bank
919 East Main Street
Richmond, Virginia 23219
Attn: Mr. Keith A. Hubbard
$25,000,000 2.5% THE DAI-ICHI KANGYO BANK, LTD.
By:/s/ Andreas Panteli
Title: Vice President
Domestic Lending Office:
The Dai-ichi Kangyo Bank, Ltd.
One World Trade Center, 48th Floor
New York, New York 10048
Attn: Mr. Andreas Panteli
Eurodollar Lending Office:
The Dai-ichi Kangyo Bank, Ltd.
One World Trade Center, 48th Floor
New York, New York 10048
Attn: Mr. Andreas Panteli
$25,000,000 2.5% THE FIRST NATIONAL BANK OF BOSTON
By:/s/ William F. Hamilton
Title: Vice President
Domestic Lending Office:
The First National Bank of Boston
100 Federal Street, 1-6-12
Boston, Massachusetts 02110
Attn: Mr. William F. Hamilton
Eurodollar Lending Office:
The First National Bank of Boston
100 Federal Street, 1-6-12
Boston, Massachusetts 02110
Attn: Mr. William F. Hamilton
$25,000,000 2.5% THE FUJI BANK, LIMITED
NEW YORK BRANCH
By:/s/ Illegible
Title:Vice President and Manager
Domestic Lending Office:
The Fuji Bank, Limited
New York Branch
Two World Trade Center, 79th Floor
New York, New York 10048
Attn: Ms. Chigusa Tada
Eurodollar Lending Office:
The Fuji Bank, Limited
New York Branch
Two World Trade Center, 79th Floor
New York, New York 10048
Attn: Ms. Chigusa Tada
$25,000,000 2.5% THE SANWA BANK LIMITED, NEW YORK
BRANCH
By:/s/ Joseph E. Leo
Title: Vice President
Domestic Lending Office:
The Sanwa Bank Limited, New York
Branch
55 E. 52nd Street
New York, New York 10055
Attn: Mr. Joseph Leo
Eurodollar Lending Office:
The Sanwa Bank Limited, New York
Branch
55 E. 52nd Street
New York, New York 10055
Attn: Mr. Joseph Leo
$25,000,000 2.5% WESTPAC BANKING CORPORATION
By:/s/ Pamela L. Atkins
Title: Assistant Vice President
Domestic Lending Office:
Westpac Banking Corporation
335 Madison Avenue (27th Floor)
New York, New York 10017
Attn: Ms. Pamela L. Atkins
Eurodollar Lending Office:
Westpac Banking Corporation
335 Madison Avenue (27th Floor)
New York, New York 10017
Attn: Ms. Pamela L. Atkins
Schedule 3.6
Material Litigation
NONE