EXHIBIT 4.1
$600,000,000
364-DAY CREDIT AGREEMENT
dated as of
October 28, 1999
among
CK Witco Corporation
The Eligible Subsidiaries
Referred to Herein
The Banks Listed Herein
The Chase Manhattan Bank,
as Syndication Agent
Citibank, N.A.,
as Administrative Agent
and
Bank of America, N.A. and Deutsche Bank Securities Inc.,
as Co-Documentation Agents
Chase Securities Inc.,
as Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions 1
SECTION 1.02. Accounting Terms and Determinations 14
SECTION 1.03. Types of Borrowings 14
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend 14
SECTION 2.02. Method of Committed Borrowing 15
SECTION 2.03. Money Market Borrowings 15
SECTION 2.04. Notice to Banks; Funding of Loans 19
SECTION 2.05. Notes 19
SECTION 2.06. Maturity of Loans 20
SECTION 2.07. Interest Rates 20
SECTION 2.08. Facility Fees 23
SECTION 2.09. Optional Termination or Reduction of Commitments 24
SECTION 2.10. Mandatory Termination of Commitments 24
SECTION 2.11. Prepayments 24
SECTION 2.12. General Provisions as to Payments 25
SECTION 2.13. Funding Losses 26
SECTION 2.14. Computation of Interest and Fees 26
SECTION 2.15. Taxes 26
SECTION 2.16. Judgment Currency 28
SECTION 2.17. Foreign Subsidiary Costs 29
SECTION 2.18. Extension of Commitments 33
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness 35
SECTION 3.02. Borrowings 36
SECTION 3.03. First Borrowing by Each Eligible Subsidiary 37
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power 37
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention 37
SECTION 4.03. Binding Effect 38
SECTION 4.04. Financial Information 38
SECTION 4.05. Litigation 38
SECTION 4.06. Compliance with ERISA 38
SECTION 4.07. Environmental Matters 39
SECTION 4.08. Taxes 39
SECTION 4.09. Subsidiaries 39
SECTION 4.10. Not an Investment Company or a Public Utility
Holding Company 39
SECTION 4.11. Full Disclosure 40
SECTION 4.12. Year 2000 40
ARTICLE 5
COVENANTS
SECTION 5.01. Information 40
SECTION 5.02. Payment of Obligations 42
SECTION 5.03. Maintenance of Property; Insurance 42
SECTION 5.04. Conduct of Business and Maintenance of Existence 42
SECTION 5.05. Compliance with Laws 43
SECTION 5.06. Inspection of Property, Books and Records 43
SECTION 5.07. Financial Covenants 43
SECTION 5.08. Negative Pledge 43
SECTION 5.09. Consolidations, Mergers and Sales of Assets 44
SECTION 5.10. Use of Proceeds 44
SECTION 5.11. Additional Subsidiaries 44
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default 45
SECTION 6.02. Notice of Default 47
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization 47
SECTION 7.02. Agents and Affiliates 47
SECTION 7.03. Action by Agents 47
SECTION 7.04. Consultation with Experts 47
SECTION 7.05. Liability of Agents 47
SECTION 7.06. Indemnification 48
SECTION 7.07. Credit Decision 48
SECTION 7.08. Successor Agents 48
SECTION 7.09. Agents' Fees 49
SECTION 7.10. Co-Documentation Agents 50
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair 49
SECTION 8.02. Illegality 49
SECTION 8.03. Increased Cost and Reduced Return 50
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed
Rate Loans 51
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. Corporate Existence and Power 52
SECTION 9.02. Corporate and Governmental Authorization;
No Contravention 52
SECTION 9.03. Binding Effect 52
SECTION 9.04. Taxes 52
ARTICLE 10
GUARANTY
SECTION 10.01. The Guaranty 52
SECTION 10.02. Guaranty Unconditional 53
SECTION 10.03. Discharge Only upon Payment in Full; Reinstatement
in Certain Circumstances 53
SECTION 10.04. Waiver by the Company 53
SECTION 10.05. Subrogation 54
SECTION 10.06. Stay of Acceleration 56
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices 55
SECTION 11.02. No Waivers 55
SECTION 11.03. Expenses; Indemnification 55
SECTION 11.04. Sharing of Set-offs 55
SECTION 11.05. Amendments and Waivers 56
SECTION 11.06. Successors and Assigns 56
SECTION 11.07. Collateral 58
SECTION 11.08. Governing Law; Submission to Jurisdiction 58
SECTION 11.09. Counterparts; Integration 59
SECTION 11.10. Waiver of Jury Trial 59
SECTION 11.11. Confidentiality 59
PRICING SCHEDULE
EXHIBIT A Note
EXHIBIT B Opinion of John T. Ferguson, II, Esq.,
General Counsel of the Company
EXHIBIT C Opinion of Wachtell Lipton Rosen & Katz,
Special Counsel for the Company
EXHIBIT D Assignment and Assumption Agreement
EXHIBIT E Form of Money Market Quote Request
EXHIBIT F Form of Invitation for Money Market Quotes
EXHIBIT G Form of Money Market Quote
EXHIBIT H Form of Election to Participate
EXHIBIT I Form of Election to Terminate
EXHIBIT J Opinion of Counsel for the Borrower
EXHIBIT K Form of Subsidiary Guarantee Agreement
EXHIBIT L Form of Indemnity, Subrogation and Contribution Agreement
364-DAY CREDIT AGREEMENT
AGREEMENT dated as of October 28, 1999 among CK WITCO CORPORATION,
the ELIGIBLE SUBSIDIARIES referred to herein, the BANKS listed on the
signature pages hereof, CITIBANK, N.A., as Administrative Agent, THE CHASE
MANHATTAN BANK, as Syndication Agent, and BANK OF AMERICA, N.A., and DEUTSCHE
BANK SECURITIES INC., as Co-Documentation Agents.
WHEREAS, the Company wishes to have a revolving credit facility
under which it or any of its Eligible Subsidiaries may from time to time
borrow funds, denominated in Dollars, from the Banks ratably in proportion to
their respective Commitments;
WHEREAS, the Company wishes said credit facility to permit the
Company or any Eligible Subsidiary from time to time to borrow funds,
denominated in Dollars, from one or more Banks on the basis of their
competitive bids;
WHEREAS, the Banks are willing to extend said credit facility to the
Company and its Eligible Subsidiaries on the terms and conditions set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the meaning set forth
in Section 2.07(c).
"Administrative Agent" means Citibank, N.A., in its capacity as
administrative agent for the Banks hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent,
duly completed by such Bank and submitted to the Administrative Agent (with a
copy to the Company).
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"Agents" means the Administrative Agent, the Syndication Agent and
the Co-Documentation Agents, and "Agent" means any of the foregoing.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"Applicable Percentage" means, with respect to any Bank, the
percentage of the total Commitments represented by such Bank's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall
be determined based upon the Commitments most recently in effect, giving
effect to any assignments.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Assignee" has the meaning set forth in Section 11.06(c).
"Availability Period" means the period from and including the
Effective Date to but not including the Termination Date.
"Bank" means each Person listed on the signature pages hereof, each
Assignee or other Person which becomes a Bank pursuant to Section 11.06(c) or
Section 2.18, and their respective successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means a Committed Loan to be made by a Bank as a
Base Rate Loan pursuant to the applicable Notice of Committed Borrowing or
Article 8.
"Base Rate Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Borrower" means the Company or any Eligible Subsidiary, as the
context may require, and their respective successors, and "Borrowers" means
all of the foregoing.
"Borrowing" has the meaning set forth in Section 1.03.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a Bank as a CD Loan
pursuant to the applicable Notice of Committed Borrowing.
"CD Reference Banks" means the financial institutions acting as the
Administrative Agent, the Syndication Agent and the Co-Documentation Agents.
"Co-Documentation Agents" means Bank of America, N.A. and Deutsche
Bank Securities Inc., in their capacities as co-documentation agents for the
Banks hereunder, and their successors in such capacity.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount
may be reduced from time to time pursuant to Section 2.09 or 2.10 and as such
amount may be reduced or increased from time to time pursuant to assignments
to or by such Bank in accordance with Section 11.06 or in connection with an
extension pursuant to Section 2.18.
"Committed Loan" means a loan made by a Bank pursuant to
Section 2.01.
"Company" means CK Witco Corporation, a Delaware corporation, and
its successors.
"Company's S-4" means the Company's registration statement on
Form S-4, as filed on July 28, 1999 with the Securities and Exchange
Commission.
"Consolidated Debt" means at any date the Debt of the Company and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company
in its consolidated financial statements if such statements were prepared as
of such date.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except (a) trade accounts payable arising in the
ordinary course of business, (b) obligations incurred in the ordinary course
of business in connection with additions to property, plant or equipment which
are deferred for no more than 120 days after the later of the acquisition or
completion of installation of such additions, (c) other obligations arising in
the ordinary course of business which are deferred for no more than 120 days
after the date on which they would first be reflected as liabilities on a
balance sheet of such Person and (d) obligations in connection with the
compensation for services of officers, directors or employees of such Person,
(iv) the capitalized amount of all obligations of such Person as lessee which
are capitalized in accordance with generally accepted accounting principles,
(v) all Debt of others secured by a Lien on any asset of such Person, whether
or not such Debt is assumed by such Person, (vi) all Debt of others
Guaranteed by such Person and (vii) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit or letters
of guaranty.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Derivatives Obligations" of any Person means all obligations of
such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or other similar transaction (including any option with respect to any
of the foregoing transactions) or any combination of the foregoing
transactions.
"Dollars" and the sign "$" mean lawful money of the United States.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Company and the Administrative Agent; provided that any Bank may
so designate separate Domestic Lending Offices for its Base Rate Loans, on the
one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.07(b).
"Domestic Subsidiary" means each Subsidiary that is organized under
a jurisdiction which is any of the United States, any State thereof or the
District of Columbia.
"EBITDA" means, for any period, the consolidated net income of the
Company and its Consolidated Subsidiaries for such period plus, to the extent
deducted in computing such consolidated net income for such period, the sum
(without duplication) of (a) income tax expense, (b) Interest Expense,
(c) depreciation and amortization expense, (d) non-recurring restructuring
charges in an amount not to exceed $65 million in any fiscal year of the
Company, (e) extraordinary and other non-recurring losses and (f) any other
non-cash charges (including merger-related purchase accounting adjustments in
an amount not to exceed $289 million made as a result of the merger of
Crompton & Knowles Corporation and Witco Corporation), minus, to the extent
added in computing such consolidated net income for such period,
(a) consolidated interest income, (b) extraordinary and other non-recurring
gains and (c) any other non-cash income. Anything contained in this
definition or elsewhere in this Agreement to the contrary notwithstanding, in
calculating EBITDA for the four fiscal-quarter periods ending on December 31,
1999, March 31, 2000 and June 30, 2000, respectively, EBITDA in fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30, 1999 shall be
deemed to equal the combined EBITDA of Crompton & Knowles Corporation and
Witco Corporation for such fiscal quarters, as adjusted on a pro forma basis
to give effect to the merger of Crompton & Knowles Corporation and Witco
Corporation as if such merger had occurred on December 31, 1998.
"Effective Date" means the date the obligations of the Banks to
extend credit under this Agreement become effective in accordance with
Section 3.01.
"Election to Participate" means an Election to Participate
substantially in the form of Exhibit H hereto.
"Election to Terminate" means an Election to Terminate substantially
in the form of Exhibit I hereto.
"Eligible Subsidiary" means any Wholly-Owned Consolidated Subsidiary
as to which an Election to Participate shall have been delivered to the
Administrative Agent and as to which an Election to Terminate shall not have
been delivered to the Administrative Agent. Each such Election to Participate
and Election to Terminate shall be duly executed on behalf of such
Wholly-Owned Consolidated Subsidiary and the Company in such number of copies
as the Administrative Agent may request. The delivery of an Election to
Terminate shall not affect any obligation of an Eligible Subsidiary
theretofore incurred. The Administrative Agent shall promptly give notice to
the Banks of the receipt of any Election to Participate or Election to
Terminate.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes
into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" at any time means the Company and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company, are
treated at such time as a single employer under Section 414 of the Internal
Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Company and the Administrative Agent.
"Euro-Dollar Loan" means a Committed Loan that bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.07(c) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices of
the financial institutions acting as the Administrative Agent, the Syndication
Agent and the Co-Documentation Agents.
"Euro-Dollar Reserve Percentage" means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars
in respect of "Eurocurrency liabilities" (or in respect of any other category
of liabilities which includes deposits by reference to which the interest rate
on Euro-Dollar Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank to
United States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreements" means (i) the $500,000,000 Credit
Agreement dated as of March 31, 1997, among Witco Corporation, the Eligible
Subsidiaries referred to therein, the banks listed on the signature pages
thereof, The Chase Manhattan Bank, as Administrative Agent, and Morgan
Guaranty Trust Company of New York, as Documentation Agent and (ii) the
US$600,000,000 Third Amended and Restated Credit Agreement dated as of March
31, 1998, among Crompton & Knowles Corporation, Crompton & Knowles Colors
Incorporated, Davis-Standard Corporation, Ingredient Technology Corporation,
Uniroyal Chemical Company, Inc., the B-2 Borrowers named therein and Uniroyal
Chemical Co., as Borrowers, the Initial Lenders, Initial Issuing Banks and
Swing Line Bank named therein, Citicorp USA, Inc., as Agent, and The Chase
Manhattan Bank, Corestates Bank, N.A. and First Union National Bank, as
Managing Agents.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on
the next succeeding Domestic Business Day, and (ii) if no such rate is so
published on such next succeeding Domestic Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to the Administrative Agent
on such day on such transactions as determined by the Administrative Agent.
"Five-Year Credit Agreement" means the Five-Year Credit Agreement
dated as of the date hereof among the Company, the eligible subsidiaries named
therein, Citibank, N.A., as administrative agent, the banks named therein, The
Chase Manhattan Bank, as syndication agent, and Bank of America, N.A. and
Deutsche Bank Securities Inc., as co-documentation agents.
"Fixed Rate Loans" means CD Loans or Euro-Dollar Loans or Money
Market Loans (excluding Money Market LIBOR Loans bearing interest at the Base
Rate pursuant to Section 8.01) or any combination of the foregoing.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guaranty shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Indemnity, Subrogation and Contribution Agreement" means the 364-
Day Indemnity, Subrogation and Contribution Agreement, substantially in the
form of Exhibit L hereto, among the Company, the Subsidiary Guarantors and the
Administrative Agent.
"Interest Coverage Ratio" means, on any date, the ratio of
(a) EBITDA for the period of four consecutive fiscal quarters ended on or most
recently prior to such date to (b) Interest Expense for the period of four
consecutive fiscal quarters ended on or most recently prior to such date.
"Interest Expense" means, for any period, the interest expense of
the Company and its Consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with generally accepted accounting
principles, including (i) the amortization of debt discounts to the extent
included in interest expense in accordance with generally accepted accounting
principles, (ii) the amortization of all fees (including fees with respect to
interest rate protection agreements or other interest rate hedging
arrangements) payable in connection with the incurrence of Debt to the extent
included in interest expense in accordance with generally accepted accounting
principles and (iii) the portion of any rents payable under capital leases
allocable to interest expense in accordance with generally accepted accounting
principles. Anything contained in this definition or elsewhere in this
Agreement to the contrary notwithstanding, in calculating Interest Expense for
the four fiscal-quarter periods ending on December 31, 1999, March 31, 2000
and June 30, 2000, respectively, Interest Expense in fiscal quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999 shall be deemed to equal
the combined Interest Expense of Crompton & Knowles Corporation and Witco
Corporation for such fiscal quarters, as adjusted on a pro forma basis to give
effect to the merger of Crompton & Knowles Corporation and Witco Corporation
as if such merger had occurred on December 31, 1998.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter (or nine or twelve months thereafter if,
at the time of the relevant Borrowing, an interest period of such duration is
available to all Banks), as the relevant Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period (except an Interest Period determined
pursuant to clause (c) below) which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day in a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day in a calendar month; and
(c) any Interest Period which begins before the Termination Date and
would otherwise end after the Termination Date shall end on the Termination
Date.
(2) with respect to each CD Borrowing, the period commencing on the date of
such Borrowing and ending 30, 60, 90 or 180 days thereafter, as the relevant
Borrower may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is not
a Domestic Business Day shall be extended to the next succeeding Domestic
Business Day; and
(b) any Interest Period which begins before the Termination Date and
would otherwise end after the Termination Date shall end on the Termination
Date.
(3) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is not
a Domestic Business Day shall be extended to the next succeeding Domestic
Business Day; and
(b) any Interest Period which begins before the Termination Date and
would otherwise end after the Termination Date shall end on the Termination
Date.
(4) with respect to each Money Market LIBOR Borrowing, the period commencing
on the date of such Borrowing and ending such whole number of months
thereafter as the relevant Borrower may elect in accordance with Section 2.03;
provided that:
(a) any Interest Period (except an Interest Period determined
pursuant to clause (c) below) which would otherwise end on a day which is not
a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day in a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the last
Euro-Dollar Business Day in a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 7 days) as the relevant Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"Leverage Ratio" means, on any date, the ratio of (a) Total Debt on
such date to (b) EBITDA for the period of four consecutive fiscal quarters
ended on or most recently prior to such date.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
security interest or encumbrance of any kind in respect of such asset. For the
purposes of this Agreement, the Company or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan, a Euro-Dollar Loan or a Money Market
Loan, and "Loans" means Domestic Loans, Euro-Dollar Loans or Money Market
Loans or any combination of the foregoing.
"Loan Documents" means this Agreement, the Subsidiary Guarantee
Agreement and the Indemnity, Subrogation and Contribution Agreement.
"Loan Parties" means the Company, the other Borrowers and the
Subsidiary Guarantors.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"London Office" means, at any time, the office of the Administrative
Agent in London specified in or pursuant to Section 11.01 at such time.
"Material Debt" means Debt (other than the obligations under this
Agreement and the Five-Year Credit Agreement) of the Company and/or one or
more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal or face amount exceeding $25,000,000.
"Material Financial Obligations" means a principal or face amount of
Debt and/or payment or collateralization obligations in respect of Derivatives
Obligations of the Company and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, in an aggregate amount
exceeding $25,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $25,000,000.
"Material Subsidiary" means at any time any Subsidiary, except
Subsidiaries which at such time have been designated by the Company (by notice
to the Agents, which may be amended from time to time) as nonmaterial, none of
which singly would meet the definition of a "significant subsidiary" contained
as of the date hereof in Regulation S-X of the Securities and Exchange
Commission and all of which, if aggregated and considered as a single
Subsidiary, would not have total assets (determined on a consolidated basis
for such Subsidiaries and their consolidated subsidiaries) in excess of 15% of
the consolidated assets of the Company and its Consolidated Subsidiaries at
such time.
"Money Market Absolute Rate" has the meaning set forth in
Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it
may hereafter designate as its Money Market Lending Office by notice to the
Company and the Administrative Agent; provided that any Bank may from time to
time by notice to the Company and the Administrative Agent designate separate
Money Market Lending Offices for its Money Market LIBOR Loans, on the one
hand, and its Money Market Absolute Rate Loans, on the other hand, in which
case all references herein to the Money Market Lending Office of such Bank
shall be deemed to refer to either or both of such offices, as the context may
require.
"Money Market LIBOR Loan" means a loan to be made by a Bank pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in
Section 2.03(d)(ii)(C).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group (i) is then making or accruing an obligation to make
contributions or (ii) for purposes of Section 6.01(i) only, has within the
preceding five plan years made contributions, including for purposes of this
clause (ii) any Person which ceased to be a member of the ERISA Group during
such five year period.
"New York Office" means, at any time, the office of the
Administrative Agent in New York specified in or pursuant to Section 11.01 at
such time.
"Notes" means promissory notes of a Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of such Borrower to repay
the Loans made to it, and "Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing (as
defined in Section 2.02) or a Notice of Money Market Borrowing (as defined in
Section 2.03(f)).
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code
and either (i) is maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (ii) for purposes of
Section 6.01(i) only, has at any time within the preceding five years been
maintained, or contributed to, by any Person which was at such time a member
of the ERISA Group for employees of any Person which was at such time a member
of the ERISA Group.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means the rate of interest publicly announced by the
Administrative Agent in New York City from time to time as its Prime Rate.
"Principal Officer" means any of the following officers of the
Company: the Chairman of the Board, the President, the chief executive
officer, the chief financial officer, the treasurer, the controller and the
general counsel. If the titles of the Company's officers are changed after the
date hereof, the term "Principal Officer" shall thereafter mean any officer
performing substantially the same functions as are presently performed by one
or more of the officers listed in the first sentence of this definition.
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any
one of such Reference Banks.
"Refunding Borrowing" means a Committed Borrowing which, after
application of the proceeds thereof, results in no net increase in the
outstanding principal amount of Committed Loans made by any Bank to any
Borrower.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, having Loans amounting to more than 50% of the aggregate unpaid
principal amount of the Loans.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect
a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Company.
"Subsidiary Guarantee Agreement" means the 364-Day Subsidiary
Guarantee Agreement substantially in the form of Exhibit K hereto, among the
Company, the Subsidiary Guarantors, and the Administrative Agent.
"Subsidiary Guarantors" means, collectively, each Domestic
Subsidiary of the Company that is a party to the Subsidiary Guarantee
Agreement and the Indemnity, Subrogation and Contribution Agreement as of the
date hereof, and each Domestic Subsidiary that, pursuant to Section 5.11,
becomes a party to such agreements by execution of supplements in the forms
provided therein.
"Syndication Agent" means The Chase Manhattan Bank, in its capacity
as syndication agent for the Banks hereunder.
"Termination Date" means October 26, 2000, or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day or, in
the case of any Bank, any later date to which the Termination Date shall have
been extended as to such Bank pursuant to Section 2.18.
"Total Debt" means, at any date, all Debt of the Company and its
Consolidated Subsidiaries at such date to the extent such Debt should be
reflected on a consolidated balance sheet of the Company at such date in
accordance with generally accepted accounting principles.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefit liabilities
under such Plan exceeds (ii) the fair market value of all Plan assets
allocable to such liabilities (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests of
which (except directors' qualifying shares or nominal shares of foreign
entities) are at the time directly or indirectly owned by the Company.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in accordance
with generally accepted accounting principles as in effect from time to time,
applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies
the Agents that the Company wishes to amend any covenant in Article 5 to
eliminate the effect of any change in generally accepted accounting principles
on the operation of such covenant (or if either Agent notifies the Company
that the Required Banks wish to amend Article 5 for such purpose), then the
Company's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Company and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes
(a) an aggregation of Committed Loans to be made by the Banks to
the same Borrower pursuant to Section 2.01 on the same day, all of which Loans
(i) are of the same type (subject to Article 8) and (ii) have the same initial
Interest Period; and
(b) an aggregation of one or more Money Market Loans to be made
by one or more Banks to the same Borrower pursuant to Section 2.03 on the same
day, all of which Loans (i) are of the same type and (ii) have the same
Interest Period.
Borrowings may be classified for purposes of this Agreement by
reference to the pricing of the Loans comprising such Borrowing (e.g., a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or
(ii) by reference to the provisions of Article 2 under which participation
therein is determined (i.e., a "Committed Borrowing" is a Borrowing under
Section 2.01 in which all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a Borrowing under
Section 2.03 in which one or more Banks participate on the basis of their
bids).
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to the
Borrowers during the Availability Period, provided that the aggregate amount
of the Committed Loans made by such Bank at any one time outstanding shall not
exceed the amount of its Commitment. Each Borrowing under this Section shall
be in an aggregate principal amount of $5,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in an aggregate amount equal
to the aggregate amount available in accordance with Section 3.02) and shall
be made from the several Banks ratably in proportion to their respective
Commitments. Within the foregoing limits, the Borrowers may borrow under this
Section, repay, or to the extent permitted by Section 2.11, prepay, Loans and
reborrow at any time during the Availability Period.
SECTION 2.02. Method of Committed Borrowing. The relevant Borrower
shall give the Administrative Agent notice (a "Notice of Committed Borrowing")
not later than 10:30 A.M. (New York City time) on (w) the date of each Base
Rate Borrowing, (x) the second Domestic Business Day before each CD Borrowing
and (y) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day
in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Committed Loans comprising such Borrowing are
to be CD Loans, Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Fixed Rate Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
On the last day of the Interest Period for any Borrowing, unless the Borrower
has otherwise notified the Administrative Agent on or prior to such day, the
Borrower shall be deemed to have given a Committed Notice of Borrowing for a
new Base Rate Borrowing in the same amount as the Borrowing that has become
due on such day, and the Borrowing becoming due on such day shall be deemed
replaced with such new Base Rate Borrowing.
SECTION 2.03. Money Market Borrowings. (a) The Money Market Option.
In addition to Committed Loans pursuant to Section 2.01, any Borrower may, as
set forth in this Section, request the Banks during the period beginning on
the Effective Date and continuing to at least seven days prior to the
Termination Date to make offers to make Money Market Loans to such Borrower.
The Banks may, but shall have no obligation to, make such offers and such
Borrower may, but shall have no obligation to, accept any such offers in a
manner set forth in this Section.
(b) Money Market Quote Request. When a Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit E hereto so as to be received by
the Administrative Agent at its New York Office not later than 10:30 AM. (New
York City time) on (x) the fourth Euro-Dollar Business Day before the date of
Borrowing proposed therein, in the case of a LIBOR Auction or (y) the Domestic
Business Day next preceding the date of Borrowing proposed therein, in the
case of an Absolute Rate Auction or, in any such case, such other time or date
as the Company and the Administrative Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective. Each such Money Market Quote Request shall
specify:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in the
case of an Absolute Rate Auction,
(ii) the proposed aggregate amount of such Borrowing, which
shall be an aggregate amount equal to $5,000,000 or a larger multiple of
$1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth
a Money Market Margin or a Money Market Absolute Rate.
A Borrower may request offers to make Money Market Loans for more
than one Interest Period in a single Money Market Quote Request. No Money
Market Quote Request shall be given within five Euro-Dollar Business Days (or
such other number of days as the Company and the Administrative Agent may
agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Administrative Agent shall send to the Banks
by telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit F hereto, which shall constitute an
invitation by the Borrower to each Bank to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request
relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Administrative Agent by telex or facsimile at its New
York Office not later than (x) 2:00 P.M. (New York City time) on the fourth
Euro-Dollar Business Day before the proposed date of Borrowing, in the case of
a LIBOR Auction, or (y) 9:30 A.M. (New York City time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction or, in any such case, such
other time or date as the Company and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date
of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective; provided that Money Market
Quotes submitted by the Administrative Agent (or any affiliate of the
Administrative Agent) in the capacity of a Bank may be submitted, and may only
be submitted, if the Administrative Agent or such affiliate notifies the
Borrower of the terms of the offer or offers contained therein not later than
(x) one hour prior to the deadline for the other Banks, in the case of a LIBOR
Auction or (y) 15 minutes prior to the deadline for the other Banks, in the
case of an Absolute Rate Auction. Subject to Articles 2 and 6, any Money
Market Quote so made shall be irrevocable except with the written consent of
the Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form
of Exhibit G hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which
each such offer is being made, which principal amount (w) may be greater than
or less than the Commitment of the quoting Bank, (x) must be an aggregate
amount equal to $5,000,000 or a larger multiple of $1,000,000, (y) may not
exceed the principal amount of Money Market Loans for which offers were
requested and (z) may be subject to an aggregate limitation as to the
principal amount of Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage (specified
to the nearest 1/10,000th of 1%) to be added to or subtracted from such base
rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%) (the "Money
Market Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers
by the quoting Bank with respect to each Interest Period specified in the
related Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit G
hereto or does not specify all of the information required by
subsection (d)(ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly
notify the Borrower of the terms (x) of any Money Market Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Money Market
Quote that amends, modifies or is otherwise inconsistent with a previous Money
Market Quote submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall be disregarded by
the Administrative Agent unless such subsequent Money Market Quote is
submitted solely to correct a manifest error in such former Money Market
Quote. The Administrative Agent's notice to the Borrower shall specify (A) the
aggregate principal amount of Money Market Loans for which offers have been
received for each Interest Period specified in the related Money Market Quote
Request, (B) the respective principal amounts and Money Market Margins or
Money Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money Market
Loans for which offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. The Borrower shall notify
the Administrative Agent of its acceptance or non-acceptance of the offers
notified to it pursuant to subsection (e) at its New York Office not later
than 10:30 A.M. (New York City time) on (x) the third Euro-Dollar Business Day
before the proposed date of Borrowing, in the case of a LIBOR Auction or
(y) the proposed date of Borrowing, in the case of an Absolute Rate Auction
or, in any such case, such other time or date as the Company and the
Administrative Agent shall have mutually agreed and shall have notified to the
Banks not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective. In the case of acceptance, such notice (a "Notice of Money Market
Borrowing") shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related Money
Market Quote Request;
(ii) the principal amount of each Money Market
Borrowing must be an aggregate amount equal to $5,000,000 or a larger multiple
of $1,000,000;
(iii) acceptance of offers may only be made on the
basis of ascending Money Market Margins or Money Market Absolute Rates, as the
case may be; and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two
or more Banks with the same Money Market Margins or Money Market Absolute
Rates, as the case may be, for a greater aggregate principal amount than the
amount in respect of which such offers are accepted for the related Interest
Period, the principal amount of Money Market Loans in respect of which such
offers are accepted shall be allocated by the Administrative Agent among such
Banks as nearly as possible (in multiples of $1,000,000, as the Administrative
Agent may deem appropriate) in proportion to the aggregate principal amounts
of such offers. Determinations by the Administrative Agent of the amounts of
Money Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans. (a) Upon receipt
of a Notice of Borrowing, the Administrative Agent shall promptly notify each
Bank of the contents thereof and of such Bank's share (if any) of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
(b) On the date of each Borrowing, each Bank participating
therein shall make available its share of such Borrowing in Dollars not later
than 12:00 Noon (New York City time), in Federal or other funds immediately
available in New York City, to the Administrative Agent at its New York
Office. Unless the Administrative Agent determines that any applicable
condition specified in Article 3 has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the Borrower
in its bank account maintained at the Administrative Agent's aforesaid
address.
(c) If any Bank makes a new Loan hereunder to a Borrower on a day
on which such Borrower is to repay all or any part of an outstanding Loan from
such Bank, such Bank shall apply the proceeds of its new Loan to make such
repayment and only an amount equal to the difference (if any) between the
amount being borrowed by such Borrower and the amount being repaid shall be
made available by such Bank to the Administrative Agent as provided in
subsection (b) of this Section, or remitted by such Borrower to the
Administrative Agent as provided in Section 2.12, as the case may be.
(d) Unless the Administrative Agent shall have received notice from
a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsections (b) and (c) of this Section and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Administrative Agent, such Bank and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the interest rate applicable thereto
pursuant to Section 2.07 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Bank's Loan included in
such Borrowing for purposes of this Agreement. In no event shall any payment
by the Administrative Agent, or repayment by the Borrower, of any amount
pursuant to this Section relieve the Bank that failed to make available its
share of the related Borrowing of its obligations hereunder.
SECTION 2.05. Notes. (a) The Loans of each Bank to each Borrower
shall, upon request of the applicable Bank, be evidenced by a single Note of
such Borrower payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans to such Borrower.
(b) Each Bank may, by notice to a Borrower and the
Administrative Agent, request that its Loans of a particular type to such
Borrower be evidenced by a separate Note of such Borrower in an amount equal
to the aggregate unpaid principal amount of such Loans. Each such Note shall
be in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences solely Loans of the
relevant type. Each reference in this Agreement to the "Note" of such Bank
shall be deemed to refer to and include any or all of such Notes, as the
context may require.
(c) Upon receipt of each Bank's Note requested pursuant to
Section 2.05(a), the Administrative Agent shall forward such Note to such
Bank. Each Bank shall record the date, amount, type and maturity of each Loan
made by it to each Borrower and the date and amount of each payment of
principal made by the Borrower with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note of any
Borrower, endorse on the schedule forming a part thereof appropriate notations
to evidence the foregoing information with respect to each such Loan to such
Borrower then outstanding; provided that the failure of any Bank to make any
such recordation or endorsement shall not affect the obligations of any
Borrower hereunder or under the Notes. Each Bank is hereby irrevocably
authorized by each Borrower so to endorse its Notes and to attach to and make
a part of any Note a continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to the
sum of the Base Rate Margin for such day plus the applicable Base Rate for
such day. Such interest shall be payable for each Interest Period on the last
day thereof. Any overdue principal of or interest on any Base Rate Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the rate otherwise applicable to Base Rate Loans
for such day.
(b) Each CD Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the CD Margin for such day
plus the applicable Adjusted CD Rate; provided that if any CD Loan shall, as a
result of clause (2)(b) of the definition of Interest Period, have an Interest
Period of less than 30 days, such CD Loan shall bear interest during such
Interest Period at the rate applicable to Base Rate Loans during such period.
Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than 90 days, at intervals of
90 days after the first day thereof. Any overdue principal of or interest on
any CD Loan shall bear interest, payable on demand, for each day until paid at
a rate per annum equal to the sum of 2% plus the higher of (i) the sum of the
CD Margin for such day plus the Adjusted CD Rate applicable to such Loan and
(ii) the rate applicable to Base Rate Loans for such day.
The "Adjusted CD Rate" applicable to a day during any Interest
Period means a rate per annum determined pursuant to the following formula:
CDBR*
ACDR = ______________ + AR
1.00-DRP
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
____________
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%.
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each CD Reference Bank of its certificates of deposit in an amount
comparable to the principal amount of the CD Loan of such CD Reference Bank to
which such Interest Period applies and having a maturity comparable to such
Interest Period.
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars
in respect of new non-personal time deposits in Dollars in New York City
having a maturity comparable to the related Interest Period and in an amount
of $100,000 or more. The Adjusted CD Rate shall be adjusted automatically on
and as of the effective date of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the
United States of America. The Adjusted CD Rate shall be adjusted automatically
on and as of the effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for
such day plus the applicable Adjusted London Interbank Offered Rate. Such
interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of
three months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which deposits are offered to
each of the Euro-Dollar Reference Banks in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before
the first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the
date payment thereof was due to but excluding the date of actual payment, at a
rate per annum equal to the sum of 2% plus the higher of (i) the sum of the
Euro-Dollar Margin for such day plus the Adjusted London Interbank Offered
Rate applicable to such Loan and (ii) the sum of the Euro-Dollar Margin for
such day plus the quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (x) the average (rounded upward, if necessary,
to the next higher 1/16 of 1%) of the respective rates per annum at which one
day (or, if such amount due remains unpaid more than three Euro-Dollar
Business Days, then for such other period of time not longer than one month as
the Administrative Agent may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each of the Euro-Dollar
Reference Banks are offered to such Euro-Dollar Reference Bank in the London
interbank market for the applicable period determined as provided above by
(y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist, at a rate per
annum equal to the sum of 2% plus the rate applicable to Base Rate Loans for
such day).
(e) Subject to Section 8.01, each Money Market LIBOR Loan shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the London
Interbank Offered Rate for such Interest Period (determined in accordance with
Section 2.07(c) as if the related Money Market LIBOR Borrowing were a
Committed Euro-Dollar Borrowing) plus (or minus) the Money Market Margin
quoted by the Bank making such Loan in accordance with Section 2.03. Each
Money Market Absolute Rate Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a
rate per annum equal to the Money Market Absolute Rate quoted by the Bank
making such Loan in accordance with Section 2.03. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than three months, at intervals of three months after the
first day thereof. Any overdue principal of or interest on any Money Market
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the Base Rate for such day.
(f) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence
of manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated hereby. If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply
SECTION 2.08. Fees. (a) The Company shall pay to the
Administrative Agent for the account of each Bank a facility fee calculated
for each day at the Facility Fee Rate for such day (determined in accordance
with the Pricing Schedule). Such facility fees shall accrue from and including
the Effective Date to but excluding the date of termination of the Commitments
in their entirety, on the daily aggregate amount of the Commitments (whether
used or unused) or, if the Commitments have terminated, on the outstanding
amount of the Loans. Accrued fees under this Section shall be payable
quarterly in arrears on each March 31, June 30, September 30 and December 31
and on the date of termination of the Commitments in their entirety (and, if
later, the date the Loans shall be repaid in their entirety).
(b) For any day on which the outstanding principal amount of Loans
shall be greater than 33% of the total Commitments (and for any day after the
termination of all the Commitments on which Loans shall be outstanding), the
Company shall pay to the Administrative Agent for the account of each Bank a
utilization fee at the per annum rate indicated in the Pricing Schedule on the
aggregate amount of each Bank's outstanding Loans on such day. Accrued and
unpaid utilization fees, if any, shall be payable on the last day of each
March, June, September and December and on the date on which the Commitments
shall have terminated and all Loans shall have been repaid in full. All
utilization fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(c) The Company agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed
upon between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and utilization fees, to the Banks entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.09. Optional Termination or Reduction of Commitments.
During the Availability Period, the Company may, upon at least three Domestic
Business Days' notice to the Administrative Agent, terminate at any time, or
proportionately reduce from time to time by an aggregate amount of at least
$10,000,000 or any larger multiple of $1,000,000, the unused portions of the
Commitments. If the Commitments are terminated in their entirety, all accrued
facility fees shall be payable on the effective date of such termination.
SECTION 2.10. Mandatory Termination of Commitments. The
Commitments shall terminate on the Termination Date, and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable
on such date.
SECTION 2.11. Prepayments. (a) The Borrower may, upon at least
one Domestic Business Day's notice to the Administrative Agent, prepay any
Base Rate Borrowing (or any Money Market Borrowing bearing interest at the
Base Rate pursuant to Section 8.01) in whole at any time, or from time to time
in part in amounts aggregating $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several Banks included in
such Borrowing.
(b) Except as provided in subsection (c) or (d) below or in
Section 8.02, the Borrower may not prepay all or any portion of the principal
amount of any Fixed Rate Loan prior to the maturity thereof unless the
Borrower pays any breakage costs under Section 2.13.
(c) If the Company becomes obligated to indemnify any Bank or the
Administrative Agent for Taxes or Other Taxes pursuant to Section 2.15(c) and
actions taken pursuant to Section 2.15(f) do not or will not eliminate such
indemnity payments, then (i) the Company may, upon at least one Domestic
Business Day's notice to the Administrative Agent, prepay all Borrowings in
whole by paying the principal amount together with accrued interest thereon to
the date of prepayment (in which event the Company shall also terminate the
Commitments in their entirety pursuant to Section 2.09) or (ii) the Company
may, at its sole expense and effort, upon notice to such Bank and the
Administrative Agent, require such Bank to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 11.06(c)), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee
may be another Bank, if a Bank accepts such assignment); provided that (A) the
Company shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (B) such Bank shall
have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Company (in the case of all other
amounts) and (C) such assignment will result in a reduction to the indemnity
payable pursuant to Section 2.15(c). A Bank shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Bank or otherwise, the circumstances entitling the Company to require
such assignment and delegation cease to apply.
(d) The Company shall cause one or more Borrowers to prepay Loans
to the extent (if any) required so that on any such date, after giving effect
to such prepayment, the aggregate amount of the Loans do not exceed the
aggregate amount of the Commitments.
(e) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share (if any) of such prepayment
and such notice shall not thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments. (a) The
Borrowers shall make each payment of principal of, and interest on, the Loans
and of fees hereunder not later than 11:00 A.M. (New York City time) on the
date when due, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its New York Office. The Administrative
Agent will promptly distribute to each Bank its ratable share of each such
payment received by the Administrative Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the Domestic Loans or of
fees shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, the Euro-Dollar
Loans shall be due on a day which is not a Euro-Dollar Business Day, the date
for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. Whenever any payment of principal of, or interest
on, the Money Market Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day. If the date for any payment of principal
is extended by operation of law or otherwise, interest thereon shall be
payable for such extended time. All payments by each Borrower shall be made
without deduction for any counterclaim, defense, recoupment or setoff.
(b) Unless the Administrative Agent shall have received notice from
a Borrower prior to the date on which any payment is due from such Borrower to
the Banks hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent that such Borrower shall not have so made such payment, each Bank shall
repay to the Administrative Agent forthwith on demand such amount distributed
to such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to the Administrative Agent at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If a Borrower makes any payment of
principal with respect to any Fixed Rate Loan (pursuant to Article 2, 6 or 8
or otherwise) on any day other than the last day of the Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant to
Section 2.07(d), or if the Borrower fails to borrow or prepay any Fixed Rate
Loans after notice has been given to any Bank in accordance with
Section 2.04(a) or 2.11, the Company shall reimburse each Bank within 15 days
after demand for any resulting loss or expense incurred by it (or by an
existing or prospective Participant in the related Loan), including (without
limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after any such
payment or failure to borrow or prepay, provided that such Bank shall have
delivered to the Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest
error.
SECTION 2.14. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.15. Taxes. (a) For the purposes of this Section 2.15,
the following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by
any Loan Party pursuant to any Loan Document or under any Note, and all
liabilities with respect thereto, excluding (i) in the case of each Bank and
Agent, taxes imposed on its income, and franchise or similar taxes imposed on
it, by a jurisdiction (or any subdivision thereof) under the laws of which
such Bank or Agent (as the case may be) is organized or in which its principal
executive office is located or, in the case of each Bank, in which its
Applicable Lending Office is located and (ii) in the case of each Bank, any
United States withholding tax imposed on such payments but only to the extent
that such Bank is subject to United States withholding tax at the time such
Bank first becomes a party to this Agreement or changes its Applicable Lending
Office.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to any Loan Document or under any Note or
from the execution or delivery of, or otherwise with respect to, any Loan
Document or any Note.
(b) Any and all payments by any Loan Party to or for the account of
any Bank or Agent under any Loan Document or under any Note shall be made
without deduction for any Taxes or Other Taxes except as required by law;
provided that, if any change in law occurring after any Bank or Agent first
becomes a party to this Agreement (or any law of a jurisdiction other than the
U.S., regardless of whether a change in law has occurred, in the case of any
Taxes or Other Taxes arising as a result of any Subsidiary other than a
Domestic Subsidiary becoming an Eligible Subsidiary after the date hereof)
requires any Loan Party to deduct any Taxes or Other Taxes from any payments
to any such Bank or Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable
to additional sums payable under this Section) such Bank or Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Loan Party shall make such deductions,
(iii) such Loan Party shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law and
(iv) such Loan Party shall furnish to the Administrative Agent, at its address
referred to in Section 11.01, the original or a certified copy of a receipt
evidencing payment thereof.
(c) The Company and each other Borrower agrees to indemnify each
Bank and Agent for the full amount of Taxes or Other Taxes imposed or asserted
by any jurisdiction on amounts payable under this Section because of a change
in law occurring after such Bank or Agent first becomes a party to this
Agreement (or under any law of a jurisdiction other than the U.S., regardless
of whether a change in law has occurred, in the case of any Taxes or Other
Taxes arising as a result of any Subsidiary other than a Domestic Subsidiary
becoming an Eligible Subsidiary after the date hereof) paid by such Bank or
Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto as certified in good
faith to the Company and each other Borrower by each Bank or Agent seeking
indemnification pursuant to this Section 2.15(c). This indemnification shall
be paid within 30 days after such Bank or Agent (as the case may be) makes
demand therefor; provided, however, that the indemnification obligations of
the Company and each other Borrower under this Section 2.15 shall be reduced
appropriately to take into account any Tax deduction, credit or benefit or
Other Tax deduction, credit or benefit to which a Bank or Agent is entitled as
a result of its payment of Taxes or Other Taxes. If a Bank or Agent receives
a refund of indemnified Taxes or Other Taxes with respect to which the Company
or any other Borrower has made payment to such Bank or Agent pursuant to this
Section 2.15(c), such Bank or Agent shall pay over such refund to the Company
or other Borrower within 10 Days after receipt of such refund.
(d) Each Bank organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Bank listed on the signature pages hereof
and on or prior to the date on which it becomes a Bank in the case of each
other Bank, from time to time thereafter if requested in writing by the
Company (but only so long as such Bank remains lawfully able to do so), and at
any time it changes its Applicable Lending Office, shall provide the Company
and the Administrative Agent with Internal Revenue Service form 1001 or 4224,
as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Bank is entitled to benefits under an income tax
treaty to which the United States is a party which exempts the Bank from
United States withholding tax or reduces the rate of withholding tax on
payments of interest for the account of such Bank or certifying that the
income receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States.
(e) For any period with respect to which a Bank has failed to
provide the Company or the Administrative Agent with the appropriate form
pursuant to Section 2.15(d) (unless such failure is due to a change in treaty,
law or regulation occurring subsequent to the date on which such form
originally was required to be provided), such Bank shall not be entitled to
indemnification under Section 2.15(b) or (c) with respect to Taxes imposed by
the United States; provided that if a Bank, which is otherwise exempt from or
subject to a reduced rate of withholding tax, becomes subject to Taxes because
of its failure to deliver a form required hereunder, the Borrowers shall take
such steps as such Bank shall reasonably request to assist such Bank to
recover such Taxes.
(f) If any Loan Party is required to pay additional amounts to or
for the account of any Bank pursuant to this Section, then such Bank will
change the jurisdiction of its Applicable Lending Office if, in the judgment
of such Bank, such change (i) will eliminate or reduce any such additional
payment which may thereafter accrue and (ii) is not otherwise disadvantageous
to such Bank.
(g) If any Borrower is organized under a jurisdiction outside of
the United States, each Bank and Agent will use reasonable efforts to
cooperate with such Borrower and the Company (but shall not be required to
disclose any information it considers, in its sole discretion, to be
confidential) to assist such Borrower to obtain any reduction of or limit on
Taxes subject to the indemnification provisions of this Section 2.15.
SECTION 2.16. Judgment Currency. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due from any Loan Party
under any Loan Document in the currency expressed to be payable herein or
therein (the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's New York office on the
Euro-Dollar Business Day preceding that on which final judgment is given. The
obligations of each Loan Party in respect of any sum due to any Bank or Agent
under any Loan Document or under any Note shall, notwithstanding any judgment
in a currency other than the specified currency, be discharged only to the
extent that on the Euro-Dollar Business Day following receipt by such Bank or
Agent (as the case may be) of any sum adjudged to be so due in such other
currency, such Bank or Agent (as the case may be) may in accordance with
normal banking procedures purchase the specified currency with such other
currency; if the amount of the specified currency so purchased is less than
the sum originally due to such Bank or Agent, as the case may be, in the
specified currency, each Borrower agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Bank or Agent, as the case may be, against such
loss, and if the amount of the specified currency so purchased exceeds (a) the
sum originally due to any Bank or Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Banks as a result of
allocations of such excess as a disproportionate payment to such Bank under
Section 11.04, such Bank or Agent, as the case may be, agrees to remit such
excess to the appropriate Borrower.
SECTION 2.17. Foreign Subsidiary Costs. (a) If the cost to any
Bank of making or maintaining any Loan to an Eligible Subsidiary is increased,
or the amount of any sum received or receivable by any Bank (or its Applicable
Lending Office) is reduced by an amount deemed by such Bank to be material, by
reason of the fact that such Eligible Subsidiary is incorporated in, or
conducts business in, a jurisdiction outside the United States of America, the
Company shall indemnify such Bank for such increased cost or reduction within
15 days after demand by such Bank (with a copy to the Administrative Agent).
A certificate of such Bank claiming compensation under this
subsection 2.17(a) and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error.
(b) Each Bank will promptly notify the Company and the
Administrative Agent of any event of which it has knowledge that will entitle
such Bank to additional interest or payments pursuant to
subsection 2.17(a) and, in the case of any Bank, will use reasonable efforts
to designate a different Applicable Lending Office, if, in the judgment of
such Bank, such designation will avoid the need for, or reduce the amount of,
such compensation and will not be otherwise disadvantageous to such Bank.
SECTION 2.18. Extension of Commitments. (a) The Company may, by
notice to the Administrative Agent (which shall promptly deliver a copy to
each of the Banks) given not less than 30 days and not more than 60 days prior
to the Termination Date then in effect, request that the Banks extend the
Termination Date for an additional period of not more than 364 days as
specified in such notice. Any such notice shall specify any fees that the
Company agrees to pay as consideration for such extension, any changes to the
Pricing Schedule that will apply during the term of such extension and the
amendments, if any, to the covenants contained herein or other provisions
hereof proposed by the Company to be applicable during the term of such
extension. Each Bank shall, by notice to the Company and the Administrative
Agent given not earlier than the 30th day and not later than the 15th day
prior to the Termination Date then in effect, advise the Administrative Agent
and the Company whether or not it agrees to such extension on the terms set
forth in such notice. Any Bank that has not so advised the Administrative
Agent by such day shall be deemed to have declined to agree to such extension.
(b) If (and only if) Banks (including any Banks becoming parties to
this Agreement as contemplated by the last sentence of paragraph (c) below)
holding more than 50% of the Commitments in effect prior to such extension
shall have agreed to extend the Termination Date (each such Bank being called
an "Extending Bank", and Banks not having so agreed being called "Non-
Extending Banks"), then, if the Company shall so elect in a notice delivered
to the Administrative Agent not earlier than the 15th day and not later than
the 10th day prior to the Termination Date then in effect, the Termination
Date shall be extended as to such Extending Banks for the additional period
and on the terms specified in the Company's notice provided for under
paragraph (a) and, if such terms vary from those contained in this Agreement,
the Company and the Extending Banks shall enter into an amendment to this
Agreement to be effective as of the Termination Date in effect prior to such
extension pursuant to which such terms shall be given effect as to the Company
and the Extending Banks and, to the extent consistent with Section 11.05, the
other Banks.
(c) If less than all the Banks consent to any extension request
pursuant to paragraph (a), the Administrative Agent shall promptly so notify
the Extending Banks, and each Extending Bank may, in its sole discretion, give
written notice to the Administrative Agent not later than 10 days prior to the
Termination Date in effect prior to giving effect to the extension provided
for in paragraph (b) (the "Existing Termination Date") of the amount of the
Non-Extending Banks' Commitments it is willing to assume. If such Extending
Banks are willing to assume Commitments in an aggregate amount that exceeds
the amount of the Commitments of the Non-Extending Banks, the Non-Extending
Banks' Commitments and outstanding Loans shall be allocated among Extending
Banks willing to assume such Commitments in such amounts as shall be agreed
between the Company and the Administrative Agent, and such Commitments and
outstanding Loans shall be assigned and assumed in accordance with the
provisions of Section 11.06(c). If after giving effect to the assignments
described above the full amount of the Commitments of the Non-Extending Banks
would not be assigned and assumed as set forth above prior to the Existing
Termination Date, the Company may (i) arrange for one or more Extending Banks
or other assignees eligible to become Banks hereunder (each, an "Extension
Assuming Bank"), to assume the unassigned amounts of the Commitments and
outstanding Loans of the Non-Extending Banks and become parties hereto with
all the rights and obligations of Banks hereunder, or (ii) subject to the
requirements of paragraph (b), reduce the aggregate amount of the Commitments
to an amount equal to the aggregate amount of Commitments held by all
Extending Banks and Extension Assuming Banks all as of the Existing
Termination Date.
On the Existing Termination Date:
(i) the Extending Banks and Extension Assuming Banks shall pay to
the Non-Extending Banks the principal amount of any outstanding Loans made by
such Non-Extending Banks and purchased in accordance with this paragraph (c),
together with any accrued interest thereon as of the Existing Termination
Date;
(ii) any accrued fees and other amounts payable hereunder to any Non-
Extending Bank as of the Existing Termination Date shall be paid to such Non-
Extending Bank by the Company or such Extending Banks and Extension Assuming
Banks; and
(iii) with respect to any such Extension Assuming Bank, the applicable
processing and recordation fee required under Section 11.06(c) shall be paid.
The commitment of any Extension Assuming Bank shall in no event be less than
$[10,000,000] unless the Commitment of a Non-Extending Bank as of the Existing
Termination Date is less than $[10,000,000], in which case such Extension
Assuming Bank may assume all of such lesser amount. Any such Non-Extending
Bank's rights under Sections 2.15, 2.17 and 8.03, and its obligations under
Section 7.06, shall survive such substitution as to matters occurring on or
prior to the Existing Termination Date.
At least three Business Days prior to the proposed effective date of
any extension of the Termination Date pursuant to this Section, (A) each
Extension Assuming Bank, if any, shall deliver to the Company and the
Administrative Agent an agreement in a form approved by the Administrative
Agent and the Company evidencing such Extension Assuming Bank's Commitment,
duly executed by such Extension Assuming Bank, such Non-Extending Bank a
Commitment of which is being assumed by such Extension Assuming Bank, the
Company and the Administrative Agent, and (B) each Extending Bank, if any,
shall have delivered written confirmation satisfactory to the Company and the
Administrative Agent as to any increase in the amount of its Commitment
resulting from its assumption of all or a portion of the Commitments of the
Non-Extending Banks. As of and following the effective date of any extension
made pursuant to this Section, each Extension Assuming Bank shall be a Bank
for all purposes of this Agreement.
(d) The decision to agree or withhold agreement to any requested
extension of the Termination Date hereunder shall be at the sole discretion of
each Bank. If the Termination Date shall have been extended as provided in
paragraph (b) above, the Commitment of any Non-Extending Bank shall terminate
on the Existing Termination Date.
(e) Notwithstanding the foregoing, no extension of the Termination
Date shall become effective under this Section unless (i) the conditions set
forth in paragraphs (c) and (d) of Section 3.02 shall be satisfied on the
Existing Termination Date and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Principal Officer
of the Borrower, and (ii) the Administrative Agent shall have received (with
sufficient copies for each of the Banks (other than any Non-Extending Banks))
documents consistent with those delivered under clauses (b), (c), (d) and (e)
of Section 3.01 as to the corporate power and authority of the Borrowers to
borrow hereunder after giving effect to such extension.
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness. The obligations of the Banks to
extend credit under this Agreement shall become effective on the date that
each of the following conditions shall have been satisfied (or waived in
accordance with Section 11.05):
(a) receipt by the Syndication Agent of counterparts hereof and
of each Loan Document signed by each of the parties hereto and thereto (or, in
the case of any party as to which an executed counterpart shall not have been
received, receipt by the Syndication Agent in form satisfactory to it of
telex, facsimile transmission or other written confirmation from such party of
execution of a counterpart hereof or thereof by such party);
(b) receipt by the Syndication Agent of an opinion of John T.
Ferguson II, Esq., General Counsel of the Company, substantially in the form
of Exhibit B hereto, and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably request;
(c) receipt by the Syndication Agent of an opinion of Wachtell
Lipton Rosen & Katz, special counsel for the Company, substantially in the
form of Exhibit C hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably request;
(d) receipt by the Syndication Agent of evidence satisfactory
to it that (i) all fees and expenses payable for the account of the Banks and
the Agents and their affiliates on or before the Effective Date have been paid
in full in the amounts previously agreed upon on or prior to the Effective
Date and (ii) the commitments under the Existing Credit Agreements have been
terminated and the principal of and interest on all loans and accrued fees
outstanding thereunder have been paid in full; and
(e) receipt by the Syndication Agent of all documents it may
reasonably request relating to the existence of the Loan Parties, the
corporate authority for and the validity of this Agreement, the other Loan
Documents and the Notes, and any other matters relevant hereto, all in form
and substance satisfactory to the Syndication Agent;
provided that the Banks shall have no obligation to extend credit hereunder
and their commitments under this Agreement shall become null and void unless
all of the foregoing conditions are satisfied not later than November 14,
1999. The Syndication Agent shall promptly notify the Company, the
Administrative Agent and the Banks of the Effective Date, and such notice
shall be conclusive and binding on all parties hereto.
SECTION 3.02. Borrowings. The obligations of any Bank to make a
Loan on the occasion of any Borrowing (excluding a continuation or conversion
of any Borrowing which does not increase the principal amount of Loans
outstanding under such Borrowing) are subject to the satisfaction of the
following conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.02 or 2.03, as the case may be;
(b) the fact that, immediately after such Borrowing, the sum of
the aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the
Borrowers contained in this Agreement (except, unless the Borrowing is taking
place on the Effective Date, the representation and warranty set forth in
Section 4.04(b) as to any matter which has theretofore been disclosed in
writing by the Company to the Banks) shall be true and correct on and as of
the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of such Borrowing that the facts specified in
clauses (b), (c) and, to the extent applicable, (d) of this Section are true
and correct.
SECTION 3.03. First Borrowing by Each Eligible Subsidiary. The
obligation of each Bank to make a Loan on the occasion of the first Borrowing
by each Eligible Subsidiary, is subject to the satisfaction of the following
further conditions:
(a) receipt by the Administrative Agent of an opinion of
counsel for such Eligible Subsidiary acceptable to the Administrative Agent,
substantially in the form of Exhibit J hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required Banks
may reasonably request; and
(b) receipt by the Administrative Agent of all documents which
it may reasonably request relating to the existence of such Eligible
Subsidiary, the corporate authority for and the validity of the Election to
Participate of such Eligible Subsidiary, the Loan Documents and the Notes of
such Eligible Subsidiary, and any other matters relevant thereto, all in form
and substance satisfactory to the Administrative Agent.
The opinion referred to in clause (a) above shall be dated no more
than five Euro-Dollar Business Days before the date of the first Borrowing by
such Eligible Subsidiary hereunder.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by each Loan Party of
each Loan Document to which such Loan Party is a party are within the
corporate powers of such Loan Party, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or Regulation or
of the certificate of incorporation or by-laws of any Loan Party or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon any Loan Party or result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement and each Loan
Document constitutes a valid and binding agreement of each Loan Party party
thereto and each Note, when executed and delivered in accordance with this
Agreement, will constitute a valid and binding obligation of the relevant
Borrower.
SECTION 4.04. Financial Information. (a) The unaudited pro forma
combined balance sheet of Crompton & Knowles Corporation and Witco Corporation
as of June 26, 1999 (for Crompton & Knowles Corporation) and as of June 30,
1999 (for Witco Corporation) and the related consolidated statement of
operations for the years ended December 26, 1998 (for Crompton & Knowles
Corporation) and December 31, 1998 (for Witco Corporation), a copy of which
has been delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial position
of Crompton & Knowles Corporation and Witco Corporation and their respective
consolidated subsidiaries as of such dates and their consolidated results of
operations for such periods.
(b) Since June 26, 1999, there has been no material adverse
change in the business, financial position or results of operations of the
Company and its Consolidated Subsidiaries, considered as a whole or, with
respect to any change occurring prior to September 1, 1999, of Witco
Corporation and its consolidated subsidiaries and Crompton & Knowles
Corporation and its consolidated subsidiaries, all taken as a whole.
(c) the Management Projections contained in the Confidential
Information Memorandum dated September, 1999, relating to the credit facility
hereunder, were prepared in good faith on the basis of assumptions believed to
reasonable at the time such assumptions were made.
SECTION 4.05. Litigation. Except as disclosed in the Company's S-
4, there is no action, suit or proceeding pending against, or to the knowledge
of the Company threatened against or affecting, the Company or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency
or official in which there is a reasonable likelihood of an adverse decision
which would materially adversely affect the business (taken as a whole),
consolidated financial position or consolidated results of operations of the
Company and its Consolidated Subsidiaries or which in any manner draws into
question the validity or enforceability of any Loan Document or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan and is in
compliance in all respect with the presently applicable provisions of ERISA
and the Internal Revenue Code with respect to each Plan, except for such
noncompliance which would not have a material adverse effect on the business,
financial position or results of operations of the Company and its
Consolidated Subsidiaries, considered as a whole. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan, or made any
amendment to any Plan, which has resulted or could result in the imposition of
a Lien or the posting of a bond or other security under ERISA or the Internal
Revenue Code or (iii) incurred any liability under Title IV of ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA, except
in the case of clause (iii) above for such liabilities which do not exceed
$5,000,000 in the aggregate during the term of this Agreement.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Company conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the Company
and its Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including, without limitation, any capital
or operating expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating expenditures required
to achieve or maintain compliance with environmental protection standards
imposed by law or as a condition of any license, permit or contract, any
related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change in
the nature of operations conducted thereat and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Company has reasonably concluded
that, except as disclosed in the Company's S-4, Environmental Laws are
unlikely to have a material adverse effect on the business, financial position
or results of operations of the Company and its Consolidated Subsidiaries,
considered as a whole.
SECTION 4.08. Taxes. United States Federal income tax returns of
Crompton & Knowles Corporation and Witco Corporation have been examined and
settled through December 31, 1997, for Crompton & Knowles Corporation, and
through December 31, 1995, for Witco Corporation. The Company and its
Subsidiaries have filed all United States Federal income tax returns and all
other material tax returns which are required to be filed by them and have
paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Company or any Subsidiary, except for items being diligently
contested in good faith and by appropriate proceedings. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate.
SECTION 4.09. Subsidiaries. Each of the Company's Material
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 4.10. Not an Investment Company or a Public Utility Holding
Company. The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Full Disclosure. All information heretofore
furnished by the Company to the Agents or any Bank in writing for purposes of
or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Company to the Agents
or any Bank in writing will be, taken as a whole, true and accurate in all
material respects on the date as of which such information is stated or
certified. The Company has disclosed to the Banks in writing any and all facts
which materially and adversely affect or may affect (to the extent the Company
can now reasonably foresee) the business, operations or financial condition of
the Company and its Consolidated Subsidiaries, taken as a whole, or the
ability of the Company or any other Loan Party to perform its obligations
under this Agreement or any other Loan Document.
SECTION 4.12. Year 2000. The Company and its Subsidiaries are
taking commercially reasonable steps to ascertain the extent of, and to
quantify and successfully address, business and financial risks facing the
Company and its Subsidiaries as a result of what is commonly referred to as
the "Year 2000 Problem" (i.e., the inability of certain computer applications
to recognize correctly and perform date-sensitive functions involving certain
dates prior to and after December 31, 1999), (b) the Company and its
Subsidiaries reasonably believe that any remedial actions required to permit
the proper functioning of any systems critical to the operations of the
Company and its Subsidiaries, taken as a whole, despite the Year 2000 Problem
have been or will be performed on or prior to December 31, 1999 and (c) the
Company and its Subsidiaries reasonably believe that the Year 2000 Problem
(including any preparations or remediations in response thereto) will not have
a material adverse effect on the business, financial position or results of
operations of the Company and its Consolidated Subsidiaries, taken as a whole.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Company will deliver to the
Administrative Agent for distribution to each of the Banks:
(a) as soon as available and in any event within 120 days after
the end of each fiscal year of the Company, a consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of the end of such fiscal
year and the related consolidated statements of operations, cash flows and
shareholders' equity for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on in
accordance with generally accepted accounting principles by KPMG LLP or other
independent public accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Company, a consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of operations for such quarter and consolidated statements of
operations and condensed cash flows for the portion of the Company's fiscal
year ended at the end of such quarter, setting forth in the case of the
statement of operations in comparative form the figures for the corresponding
quarter, in the case of the statements of operations and cash flows the
figures for the corresponding portion of the Company's previous fiscal year
and in the case of the balance sheet the figures for the previous year end,
all certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency by the
chief financial officer, treasurer or the controller or other chief accounting
officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer, treasurer or the controller or other chief accounting
officer of the Company (i) setting forth in reasonable detail the calculations
required to establish whether the Company was in compliance with the
requirements of Sections 5.07 to 5.08, inclusive, on the date of such
financial statements and (ii) stating whether any Default exists on the date
of such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Company is taking or proposes to take with
respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i) whether
anything has come to their attention to cause them to believe that any Default
existed on the date of such statements relating only to Sections 5.07,
5.08(a), 5.08(c), 5.08(f), 5.08(g)(i), 5.08(g)(ii) and 5.08(h) and
(ii) confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith pursuant to clause (c) above;
(e) within five Domestic Business Days after any Principal
Officer of the Company obtains knowledge of any Default, if such Default is
then continuing, a certificate of the chief financial officer or the
controller or other chief accounting officer of the Company setting forth the
details thereof and the action which the Company is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and proxy,
statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and
8-K (or their equivalents) which the Company shall have filed with the
Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer any
Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement
which has resulted or could result in the imposition of a Lien or the posting
of a bond or other security, a certificate of the chief financial officer or
the controller or other chief accounting officer of the Company setting forth
details as to such occurrence and action, if any, which the Company or
applicable member of the ERISA Group is required or proposes to take; and
(i) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries as any
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Payment of Obligations. The Company will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity (or, in the case of tax liabilities, if later, before the same become
subject to penalties), all their respective obligations and liabilities
(including, without limitation, tax liabilities, except where the same may be
contested in good faith by appropriate proceedings) if the failure to so pay
and discharge would have a material adverse effect on the business, financial
position or results of operations of the Company and its Consolidated
Subsidiaries considered as a whole, and will maintain, and will maintain for
each Material Subsidiary or cause each Material Subsidiary to maintain, in
accordance with generally accepted accounting principles, appropriate reserves
for the accrual of any of the same.
SECTION 5.03. Maintenance of Property; Insurance. The Company will
keep, and will cause each Material Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear
and tear excepted; will maintain, and will cause each Material Subsidiary to
maintain (either in the name of the Company or in such Material Subsidiary's
own name) with insurance companies which at the time such insurance is
purchased or renewed are financially sound and reputable, insurance on all
their property in at least such amounts (including self-insurance retentions)
and against at least such risks as are usually insured against (including
self-insurance retentions) in the same general area by companies of similar
size engaged in the same or a similar business; and will furnish to the Banks,
upon written request from the Administrative Agent, full information as to the
insurance carried.
SECTION 5.04. Conduct of Business and Maintenance of Existence.
The Company and its Material Subsidiaries (on a consolidated basis) will
continue to engage in business of the same general types as now conducted by
the Company and its Material Subsidiaries, and will preserve, renew and keep
in full force and effect, and will cause each Material Subsidiary to preserve,
renew and keep in full force and effect their respective corporate existence
and their respective rights, privileges and franchises necessary or desirable
in the normal conduct of business; provided that nothing in this Section 5.04
shall prohibit (i) the merger of a Subsidiary into the Company or the merger
or consolidation of a Subsidiary with or into another Person if the
corporation surviving such consolidation or merger is a Wholly-Owned
Consolidated Subsidiary and if, in each case, after giving effect thereto, no
Default shall have occurred and be continuing, (ii) the termination of the
corporate existence, rights, privileges or franchises of any Subsidiary (other
than any Subsidiary which is a Borrower) if the Company in good faith
determines that such termination is in the best interest of the Company and is
not materially disadvantageous to the Banks or (iii) any disposition of assets
not prohibited by Section 5.09 hereof.
SECTION 5.05. Compliance with Laws. The Company will comply, and
cause each Subsidiary to comply, in all respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder and all applicable laws, ordinances, rules, regulations
and requirements of governmental authorities relating to the acquisition
referred to in Section 5.10) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings or where
failure to comply would not materially adversely affect the business (taken as
a whole), consolidated financial position or consolidated results of
operations of the Company and its Consolidated Subsidiaries.
SECTION 5.06. Inspection of Property, Books and Records. The
Company will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of
all dealings and transactions in relation to its business and activities; and
will permit, and will cause each Material Subsidiary to permit,
representatives of any Bank at such Bank's expense to visit and inspect any of
their respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants, all upon such reasonable notice, at such reasonable times and as
often as may reasonably be desired.
SECTION 5.07. Financial Covenants. (a) The Company will not permit
the Leverage Ratio at any time to exceed 3.50 to 1.00.
(b) The Company will not permit the Interest Coverage Ratio at any
time to be less than 3.00 to 1.00.
SECTION 5.08. Negative Pledge. Neither the Company nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $75,000,000 (exclusive of Liens permitted by clause (h) of this
Section);
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Subsidiary and not created in contemplation of
such event;
(c) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring,
constructing or improving such asset, provided that such Lien attaches to such
asset concurrently with or within 180 days after the acquisition thereof or
completion of the construction or improvement thereto, as the case may be,
(d) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into the Company or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Subsidiary and not created in contemplation of
such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(g) Liens not otherwise permitted by the foregoing clauses of
this Section arising in the ordinary course of its business which (i) do not
secure Debt, (ii) do not secure obligations in an amount exceeding
$100,000,000 in the aggregate and (iii) do not materially impair the use of
the assets subject thereto in the operation of the business of the Company and
its Subsidiaries; or
(h) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt or interest rate and currency swaps in an aggregate
principal amount, notional principal and final exchange amount at any time
outstanding not to exceed $50,000,000.
SECTION 5.09. Consolidations, Mergers and Sales of Assets. The
Company and its Subsidiaries will not (i) consolidate or merge with or into
any other Person or (ii) sell, lease or otherwise transfer, directly or
indirectly, any of the assets of the Company and its Subsidiaries, to any
other Person; provided that (A) the Company or a Subsidiary may merge with
another Person if (x) the Company or, in the case of a merger not involving
the Company, a Subsidiary Guarantor is the corporation surviving such merger
and (y) immediately after giving effect to such merger, no Default shall have
occurred and be continuing, (B) each of the Company and its Subsidiaries may
sell, lease or otherwise transfer any of its inventory in the ordinary course
of business and any of its assets which, in the judgment of its officers, are
obsolete, excess or unserviceable and (C) the Company and its Subsidiaries may
sell, lease or transfer any of their assets with a market value that does not,
in the aggregate together with all other sales, leases and transfers pursuant
to this clause (C), exceed 25% of the total assets of the Company and its
Subsidiaries as of the date hereof.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Borrowers for general corporate
purposes. None of such proceeds will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of buying or carrying any
"margin stock" within the meaning of Regulation U.
SECTION 5.11. Additional Subsidiaries. The Company will ensure at
all times that Domestic Subsidiaries are (or become within 10 Domestic
Business Days of being formed or acquired) Subsidiary Guarantors so that (a)
the total assets of the Company and the Subsidiary Guarantors comprise at
least 85% by book value of the total assets of the Company and the Domestic
Subsidiaries and (b) the total revenues of the Company and the Subsidiary
Guarantors, as of the most recently ended fiscal quarter, comprise at least
85% of the total revenues of the Company and the Domestic Subsidiaries for
such fiscal quarter; provided, that only Domestic Subsidiaries shall be
required to become Subsidiary Guarantors.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) any Borrower shall fail to pay when due any principal of any
Loan, or shall fail to pay within three Domestic Business Days of the due date
thereof any interest on any Loan, any fees or any other amount payable
hereunder;
(b) the Company or any other Borrower shall fail to observe or
perform any applicable covenant contained in Sections 5.07 to 5.10, inclusive;
(c) any Loan Party shall fail to observe or perform any covenant
or agreement contained in any Loan Document (other than those covered by
clause (a) or (b) above) for 30 days after written notice thereof has been
given to the Company by the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement
made by any Loan Party in any Loan Document or in any certificate, financial
statement or other document delivered pursuant to any Loan Document shall
prove to have been incorrect in any material respect when made (or deemed
made);
(e) a "Default" occurs and is continuing under the Five-Year
Credit Agreement or the Company or any Subsidiary shall fail to make any
payment of principal, face amount, interest, premium, fees or any similar
obligation in respect of any Material Financial Obligations when due or within
any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables the holder of
such Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(g) the Company, any other Borrower or any Material Subsidiary
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company, any other Borrower or any Material Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 days; or an order for relief shall
be entered against the Company, any other Borrower or any Material Subsidiary
under the federal bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate
a Material Plan shall be filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA Group
to incur a current payment obligation in excess of $25,000,000;
(j) a judgment or order, or judgments or orders, for the payment
of money in excess in the aggregate of $25,000,000 (in excess of available
insurance coverage) shall be rendered against the Company, any other Borrower
or any Material Subsidiary and such judgment or order, or judgments or orders,
shall continue unsatisfied and unstayed for a period of 30 days;
(k) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall
have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act) of 35%
or more of the outstanding shares of common stock of the Company; or, during
any period of twelve consecutive calendar months commencing after September 1,
1999, individuals who were directors of the Company on the first day of such
period shall cease to constitute a majority of the board of directors of the
Company; or
(l) the guaranty by the Company in Article 10 shall for any
reason be revoked or invalidated, or otherwise cease to be in full force and
effect, or the Company (or any Person on behalf of the Company) shall deny or
disaffirm its obligations under such guaranty;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by
notice to the Company terminate the Commitments and they shall thereupon
terminate and (ii) if requested by Banks holding more than 50% of the
aggregate amount of the Loans, by notice to the Company declare the Loans
(together with accrued interest thereon) to be, and the Loans shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower;
provided that in the case of any of the Events of Default specified in
clause (g) or (h) above with respect to any Borrower, automatically, without
any notice to any Borrower or any other act by the Agents or the Banks, the
Commitments shall thereupon terminate and the Loans (together with accrued
interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent shall
give notice to the Company under Section 6.01(c) promptly upon being requested
to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes each Agent to take such action as its agent on its
behalf and to exercise such powers under the Loan Documents and the Notes as
are delegated to such Agent by the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. Each of the Agents shall have
the same rights and powers under this Agreement as any other Bank and may
exercise or refrain from exercising the same as though it were not an Agent,
and each of the Agents and its affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Company or any
Subsidiary or affiliate of the Company as if it were not an Agent hereunder.
SECTION 7.03. Action by Agents. The obligations of the Agents
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, none of the Agents shall be required to take any
action with respect to any Default, except as expressly provided with respect
to the Administrative Agent in Article 6.
SECTION 7.04. Consultation with Experts. Each Agent may consult with
legal counsel (who may be counsel for any Borrower), independent public
accountants and other experts selected by it and shall not be liable to any
Bank for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agents. None of the Agents nor any of
their respective affiliates or any of their respective directors, officers,
agents or employees shall be liable to any Bank for any action taken or not
taken by it in connection herewith (i) with the consent or at the request of
the Required Banks or (ii) in the absence of its own gross negligence or
willful misconduct. None of the Agents nor any of their respective affiliates
or any of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of the Borrower; (iii) the satisfaction of any
condition specified in Article 3, except receipt of items required to be
delivered to such Agent; or (iv) the validity, effectiveness or genuineness of
any Loan Document, the Notes or any other instrument or writing furnished in
connection herewith. No Agent shall incur any liability by acting in reliance
upon any notice, consent, certificate, statement, or other writing (which may
be a bank wire, telex, facsimile transmission or similar writing) believed by
it to be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify each Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except in the
case of each indemnitee such as result from such indemnitee's gross negligence
or willful misconduct) that such indemnitees may suffer or incur in connection
with any Loan Document or any action taken or omitted by such indemnitees
hereunder or thereunder.
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon any Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any Agent
or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
SECTION 7.08. Successor Agents. Any Agent may resign at any time by
giving written notice thereof to the Banks and the Company. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent, which successor shall (unless an Event of Default shall have occurred
and be continuing) be reasonably acceptable to the Company. If no successor
Agent shall have been so appointed by the Required Banks, and shall have
accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which successor shall (unless an Event of Default
shall have occurred and be continuing) be reasonably acceptable to the
Company, and which shall be a commercial bank organized or licensed under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $50,000,000. Upon the acceptance by a
successor Agent of its appointment as Agent hereunder, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent.
SECTION 7.09. Agents' Fees. The Company shall pay to each Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Company and such Agent.
SECTION 7.10. Co-Documentation Agents. Notwithstanding anything to
the contrary contained herein, none of the Banks identified on the facing page
or signature pages of this Agreement as "co-documentation agent" shall have
any right, power, obligation, liability, responsibility or duty under any Loan
Document other than those applicable to all Banks as such. Without limiting
the foregoing, none of such Banks shall have or be deemed to have any
fiduciary relationship with any other Bank in connection herewith. Each Bank
acknowledges that it has not relied, and will not rely, on any of the Banks so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any CD
Loan, Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) in the case of a Committed Borrowing, Banks having 50% or more
of the amount of the Commitments advise the Administrative Agent that the
Adjusted CD Rate or the Adjusted London Interbank Offered Rate, as the case
may be, to such Borrower as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding their CD Loans
or Euro-Dollar Loans, as the case may be, for such Interest Period,
(c) the Administrative Agent shall forthwith give notice thereof to
the Company and the Banks, whereupon until the Administrative Agent notifies
the Company that the circumstances giving rise to such suspension no longer
exist, the obligations of the Banks to make CD Loans or Euro-Dollar Loans, as
the case may be, shall be suspended. Unless the Borrower notifies the
Administrative Agent at least two Domestic Business Days before the date of
any Fixed Rate Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing in the same aggregate amount as the requested Borrowing
and (ii) if such Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the
Money Market LIBOR Loans comprising such Borrowing shall be made in the same
aggregate amount as the requested Borrowing and shall bear interest for each
day from and including the first day to but excluding the last day of the
Interest Period applicable thereto at the Base Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank (or
its Euro-Dollar Lending Office) with any request or directive promulgated on
or after the date hereof (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Euro-Dollar Lending Office) to make, maintain
or fund its Euro-Dollar Loans to any Borrower and such Bank shall so notify
the Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Banks and the Company, whereupon until such Bank notifies
the Company and the Administrative Agent that the circumstances giving rise to
such suspension no longer exist, the obligation of such Bank to make Euro-
Dollar Loans to such Borrower shall be suspended. Before giving any notice to
the Administrative Agent pursuant to this Section, each Bank will use
reasonable efforts to designate a different Euro-Dollar Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and fund any of
its outstanding Euro-Dollar Loans to such Borrower to maturity and shall so
specify in such notice, such Borrower shall immediately prepay in full the
then outstanding principal amount of each such Euro-Dollar Loan, together with
accrued interest thereon. Concurrently with prepaying each such Euro-Dollar
Loan, such Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
(x) the date hereof, in the case of any Committed Loan, any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or compliance by any Bank (or its Applicable Lending Office) with any request
or directive (whether or not having the force of law) of any such authority,
central bank or comparable agency made or promulgated after the date hereof
shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding (A) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve Percentage and (B) with
respect to any Euro-Dollar Loan any such requirement included in an applicable
Euro-Dollar Reserve Percentage), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such requirement reflected in an
applicable Assessment Rate) or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Bank (or its Applicable
Lending Office) or shall impose on any Bank (or its Applicable Lending
Office) or on the United States market for certificates of deposit or the
London interbank market any other condition affecting its Fixed Rate Loans or
its Note or its obligation to make Fixed Rate Loans and the result of any of
the foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Fixed Rate Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Applicable Lending
Office) under this Agreement or under its Note with respect thereto, by an
amount deemed by such Bank to be material, then, within 15 days after demand
by such Bank (with a copy to the Administrative Agent), the Company shall pay
to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof,
the adoption of any applicable law, rule or Regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on capital of such
Bank (or the Parent of either) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days
after demand by such Bank (with a copy to the Administrative Agent), the
Company shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the
Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation pursuant to this
Section and will use reasonable efforts to designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make Euro-Dollar Loans to any
Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03(a) with respect to its CD Loans or
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Bank through the Administrative Agent,
have elected that the provisions of this Section shall apply to such Bank,
then, unless and until such Bank notifies the Company that the circumstances
giving rise to such suspension or demand for compensation no longer apply:
(a) all Loans to such Borrower which would otherwise be made by such
Bank as CD Loans or Euro-Dollar Loans, as the case may be, to such Borrower
shall be made instead as Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Fixed Rate Loans of the
other Banks), and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may
be, to such Borrower has been repaid, all payments of principal which would
otherwise be applied to repay such Fixed Rate Loans shall be applied to repay
its Base Rate Loans instead.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
OF ELIGIBLE SUBSIDIARIES
Each Eligible Subsidiary shall be deemed by the execution and
delivery of its Election to Participate to have represented and warranted as
of the date thereof that:
SECTION 9.01. Corporate Existence and Power. It is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and is a Wholly-Owned Consolidated Subsidiary.
SECTION 9.02. Corporate and Governmental Authorization; No
Contravention. The execution and delivery by it of its Election to Participate
and its Notes, and the performance by it of the Loan Documents to which it is
a party and its Notes, are within its corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or Regulation or of its certificate of incorporation or by-laws or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Company or such Eligible Subsidiary or result in the creation or
imposition of any Lien on any asset of the Company or any of its Subsidiaries.
SECTION 9.03. Binding Effect. Each Loan Document to which such
Eligible Subsidiary is a party constitutes a valid and binding agreement of it
and its Notes, when executed and delivered in accordance with this Agreement,
will constitute valid and binding obligations of such Eligible Subsidiary.
SECTION 9.04. Taxes. Except as disclosed in such Election to
Participate, there is no income, stamp or other tax of any country, or any
taxing authority thereof or therein, imposed by or in the nature of
withholding or otherwise, which is imposed on any payment to be made by such
Eligible Subsidiary pursuant hereto or on its Notes, or is imposed on or by
virtue of the execution, delivery or enforcement of its Election to
Participate or of its Notes.
ARTICLE 10
GUARANTY
SECTION 10.01. The Guaranty. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Loan made
to any Eligible Subsidiary pursuant to this Agreement, and the full and
punctual payment of all other amounts payable by any Eligible Subsidiary under
this Agreement. Upon failure by any Eligible Subsidiary to pay punctually any
such amount, the Company shall forthwith on demand pay the amount not so paid
at the place and in the manner specified in this Agreement.
SECTION 10.02. Guaranty Unconditional. The obligations of the
Company hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or
otherwise affected
by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any Eligible Subsidiary under this
Agreement, any other Loan Document or any Note, by operation of law or
otherwise;
(b) any modification or amendment of or supplement to this
Agreement, any other Loan Document or any Note;
(c) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of any Eligible Subsidiary
under this Agreement, any other Loan Document or any Note;
(d) any change in the corporate existence, structure or ownership of
any Eligible Subsidiary, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any Eligible Subsidiary or its assets or
any resulting release or discharge of any obligation of any Eligible
Subsidiary contained in this Agreement, any other Loan Document or any Note;
(e) the existence of any claim, set-off or other rights which the
Company may have at any time against any Eligible Subsidiary, any Agent, any
Bank or any other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim;
(f) any invalidity or unenforceability relating to or against any
Eligible Subsidiary for any reason of this Agreement, any other Loan Document
or any Note, or any provision of applicable law or Regulation purporting to
prohibit the payment by any Eligible Subsidiary of the principal of or
interest on any Note or any other amount payable by it under any Loan
Document; or
(g) any other act or omission to act or delay of any kind by any
Eligible Subsidiary, any Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the Company's obligations
hereunder.
SECTION 10.03. Discharge Only upon Payment in Full; Reinstatement in
Certain Circumstances. The Company's obligations hereunder shall remain in
full force and effect until the Commitments shall have terminated and the
principal of and interest on the Notes and all other amounts payable by the
Loan Parties under the Loan Documents shall have been paid in full. If at any
time any payment of the principal of or interest on any Note or any other
amount payable by any Eligible Subsidiary under this Agreement or any other
Loan Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of any Eligible Subsidiary or
otherwise, the Company's obligations hereunder with respect to such payment
shall be reinstated at such time as though such payment had been due but not
made at such time.
SECTION 10.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided
for herein, as well as any requirement that at any time any action be taken by
any Person against any Eligible Subsidiary or any other Person.
SECTION 10.05. Subrogation. Upon making any payment with respect to
any Eligible Subsidiary hereunder, the Company shall be subrogated to the
rights of the payee against such Eligible Subsidiary with respect to such
payment; provided that the Company shall not enforce any payment by way of
subrogation until all amounts of principal of and interest on the Loans and
all other amounts payable under this Agreement have been paid in full.
SECTION 10.06. Stay of Acceleration. In the event that acceleration
of the time for payment of any amount payable by any Eligible Subsidiary under
this Agreement or its Notes is stayed upon insolvency, bankruptcy or
reorganization of such Eligible Subsidiary, all such amounts otherwise subject
to acceleration under the terms of this Agreement shall nonetheless be payable
by the Company hereunder forthwith on demand by the Administrative Agent made
at the request of the Required Banks.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex, facsimile transmission or similar writing) and shall be given to
such party: (a) in the case of any Borrower, at its address, facsimile number
or telex number set forth on the signature pages hereof (or, in the case of an
Eligible Subsidiary, its Election to Participate), (b) in the case of the
Administrative Agent, at its address, facsimile number or telex number in New
York City set forth on the signature pages hereof, (c) in the case of any
Bank, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (d) in the case of any party, such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the Agents and the Company. Each such notice,
request or other communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in this Section and
the appropriate answer back is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number specified in this
Section and confirmation of receipt is received, (iii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iv) if given by any other means,
when delivered at the address specified in this Section; provided that notices
under Article 2 or Article 8 shall not be effective until received.
SECTION 11.02. No Waivers. No failure or delay by either Agent or
any Bank in exercising any right, power or privilege hereunder or under any
Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 11.03. Expenses; Indemnification. (a) The Company shall pay
(i) all out-of-pocket expenses of the Agents, including reasonable fees and
disbursements of special counsel for the Agents, in connection with the
preparation and administration of the Loan Documents, any waiver or consent
hereunder or thereunder or any amendment hereof or thereof or any Default or
alleged Default hereunder or thereunder and (ii) if an Event of Default
occurs, all out-of-pocket expenses incurred by any of the Agents and each
Bank, including fees and disbursements of counsel (which counsel may be an
employee of such Bank or Agent), in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom.
(b) The Company agrees to indemnify each Agent and Bank, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each, an "indemnitee") and hold each indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel (which counsel may be an employee of such
indemnitee), which may be incurred by such indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of any Loan Document or any actual or proposed use of
proceeds of Loans hereunder; provided that no indemnitee shall have the right
to be indemnified hereunder for its own gross negligence or willful misconduct
or breach of its obligations under any Loan Document as determined by a court
of competent jurisdiction.
SECTION 11.04. Sharing of Set-offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to the Loans owed to it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Loans owed to such other Bank,
the Bank receiving such proportionately greater payment shall purchase
participations in such Loans held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans held by the Banks shall be
shared by the Banks pro rata; provided that nothing in this Section shall
impair the right of any Bank to exercise any right of set-off or counterclaim
it may have and to apply the amount subject to such exercise to the payment of
indebtedness of a Borrower other than its indebtedness hereunder. Each
Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Loan, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of set-
off or counterclaim and other rights with respect to such participation as
fully as if such holder of a participation were a direct creditor of such
Borrower in the amount of such participation.
SECTION 11.05. Amendments and Waivers. Any provision of this
Agreement, the other Loan Documents or the Notes may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the
Company and the Required Banks (and, if the rights or duties of any Agent are
affected thereby, by such Agent); provided that no such amendment or waiver
shall, unless signed by all the Banks, (i) increase or decrease the Commitment
of any Bank (except for a ratable decrease in the Commitments of all Banks) or
subject any Bank to any additional obligation, (ii) reduce the principal of or
rate of interest on any Loan or any fees hereunder, (iii) postpone the date
fixed for any payment of principal of or interest on any Loan or any fees
hereunder or for any scheduled reduction or termination of any Commitment, or
(iv) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Banks which shall be required
for the Banks or any of them to take any action under this Section or any
other provision of this Agreement, (v) modify any provision of Article 10 in
any material respect or (vi) release all or any substantial portion of the
Subsidiary Guarantors from their Guarantees under the Subsidiary Guarantee
Agreement, except as provided therein; provided further that no such
amendment, waiver or modification shall, unless signed by an Eligible
Subsidiary, (w) subject such Eligible Subsidiary to any additional obligation,
(x) increase the principal of or rate of interest on any outstanding Loan of
such Eligible Subsidiary, (y) change the stated maturity of any outstanding
Loan of such Eligible Subsidiary or (z) change this proviso.
SECTION 11.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that no Borrower may
assign or otherwise transfer any of its rights under this Agreement without
the prior written consent of all Banks
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment
or any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Borrowers and the Agents, such Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrowers and the Agents
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement. Any agreement
pursuant to which any Bank may grant such a participating interest shall
provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrowers hereunder including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement described in clause (i), (ii) or (iii) of Section 11. 05
without the consent of the Participant. The Borrowers agree that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit D hereto executed by
such Assignee and such transferor Bank, with (and subject to) the consent of
the Company and the Administrative Agent, such consents not to be unreasonably
withheld; provided that if an Assignee is an affiliate of a Bank or was a Bank
immediately prior to such assignment, no such consent shall be required, and
if an Event of Default has occurred and is continuing, the consent of the
Company shall not be required; and provided further that any assignment shall
not be less than $10,000,000, or if less, shall constitute an assignment of
all of such Bank's rights and obligations under this Agreement and the Notes.
Upon execution and delivery of such instrument and payment by such Assignee to
such transferor Bank of an amount equal to the purchase price agreed between
such transferor Bank and such Assignee, such Assignee shall be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), the
transferor Bank, the Administrative Agent and the Borrowers shall make
appropriate arrangements so that, if required, new Notes are issued to the
Assignee. In connection with any such assignment, the transferor Bank shall
pay to the Administrative Agent an administrative fee for processing such
assignment in the amount of $2,500. If the Assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall, prior
to the first date on which interest or fees are payable hereunder for its
account, deliver to the Company and the Administrative Agent certification as
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 2.17.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03
than such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02 or 8.03 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Bank, identified as such in writing from time to time
by the Granting Bank to the Administrative Agent and the Company, the option
to provide to the Borrower all or any part of any Loan that such Granting Bank
would otherwise be obligated to make to the Borrower pursuant to Section 2.01;
provided that (i) nothing herein shall constitute a commitment to make any
Loan by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Bank
shall be obligated to make such Loan pursuant to the terms hereof. The making
of a Loan by an SPC hereunder shall utilize the Commitment of the Granting
Bank to the same extent, and as if, such Loan were made by the Granting Bank.
Each party hereto hereby agrees that no SPC shall be liable for any payment
under this Agreement for which a Bank would otherwise be liable, for so long
as, and to the extent, the related Granting Bank makes such payment. In
furtherance of the foregoing, each party hereto hereby agrees that, prior to
the date that is one year and one day after the payment in full of all
outstanding senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or similar
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
11.06 any SPC may (i) with notice to, but without the prior written consent
of, the Company or the Administrative Agent and without paying any processing
fee therefor, assign all or a portion of its interest in any Loans to its
Granting Bank or to any financial institutions providing liquidity and/or
credit facilities to or for the account of such SPC to fund the Loans made by
such SPC or to support the securities (if any) issued by such SPC to fund such
Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or
provider of a surety, guarantee or credit or liquidity enhancement to such
SPC. This section may not be amended with respect to any SPC without the
written consent of such SPC's Granting Bank. Notwithstanding any grant of
rights to an SPC pursuant to this paragraph, the Granting Bank shall retain
the sole right to approve any amendment, modification or waiver of any
provision of this Agreement or the other Loan Documents; provided that the
Granting Bank may enter into and perform any agreement with the SPC as to the
manner in which it will exercise such right.
SECTION 11.07. Collateral. Each of the Banks represents to the
Agents and each of the other Banks that it in good faith is not relying upon
any "margin stock" (as defined in Regulation U) as collateral in the extension
or maintenance of the credit provided for in this Agreement.
SECTION 11.08. Governing Law; Submission to Jurisdiction. (a) This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York.
(b) Each Borrower hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
any New York State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement, the other Loan
Documents or the transactions contemplated hereby. Each Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum.
(c) Each Borrower irrevocably designates and appoints CT Corporation
System, having an office on the date hereof at 1633 Broadway, New York, New
York 10102 as such Borrower's authorized agent, to accept and acknowledge on
its behalf service of any and all process which may be served in any suit,
action or proceeding referred to in subsection (b) above in any federal or New
York State court sitting in New York City. Each Borrower represents and
warrants that such agent has agreed to accept such appointment. Said
designation and appointment shall not be revocable by any Borrower until all
principal, interest and other amounts payable hereunder shall have been paid
in full in accordance with the provisions hereof or, if earlier, when such
Borrower's status as a Borrower hereunder is terminated. If such agent shall
cease to act as agent for any Borrower, such Borrower agrees to designate
irrevocably and appoint without delay another such agent satisfactory to the
Agent.
(d) Each Borrower consents to process being served in any suit,
action or proceeding referred to in subsection (b) above in any federal or New
York State court sitting in New York City by service of process upon its agent
appointed as provided in subsection (c) above; provided that, to the extent
lawful and possible, notice of said service upon such agent shall be mailed by
registered or certified air mail, postage prepaid, return receipt requested,
to such Borrower at its address specified in or pursuant to Section 11.01.
Each Borrower irrevocably waives, to the fullest extent permitted by law, all
claim of error by reason of service in such manner and agrees that such
service shall be deemed in every respect effective service of process upon
such Borrower in any such suit, action or proceeding and shall, to the fullest
extent permitted by law, constitute valid and personal service upon and
personal delivery to such Borrower.
(e) Nothing in this Section shall affect the right of the
Administrative Agent or any Bank to serve process in any other manner
permitted by law or limit the right of the Administrative Agent or any Bank to
bring proceedings against any Borrower in the courts of any jurisdiction or
jurisdictions.
SECTION 11.09. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement and the other Loan Documents constitute the entire
agreement and understanding among the parties hereto and supersedes any and
all prior agreements and understandings, oral or written, relating to the
subject matter hereof.
SECTION 11.10. Waiver of Jury Trial. EACH OF THE COMPANY, THE
BORROWERS, THE AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 11.11. Confidentiality. Each Bank agrees to exercise all
reasonable efforts to keep any information delivered or made available by a
Borrower to it which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such Bank
who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided that nothing herein shall
prevent any Bank from disclosing such information (i) to any other Bank,
(ii) to its affiliates and its and their officers, directors, employees,
agents, attorneys and accountants who have a need to know such information in
accordance with customary banking practices and who receive such information
having been made aware of the restrictions set forth in this Section,
(iii) upon the order of any court or administrative agency, (iv) upon the
request or demand of any regulatory agency or authority having jurisdiction
over such Bank, (v) which has been publicly disclosed, (vi) to the extent
reasonably required in connection with any litigation to which any Agent, any
Bank, or their respective affiliates may be a party, (vii) to the extent
reasonably required in connection with the exercise of any remedy hereunder,
(viii) to such Bank's legal counsel and independent auditors, and (ix) to any
actual or proposed participant or assignee of all or part of its rights
hereunder which has agreed in writing to be bound by the provisions of this
Section.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
CK WITCO CORPORATION
By /s/John R. Jepsen
Name: John R. Jepsen
Title: Vice President & Treasurer
Attention:
Facsimile number:
CITIBANK, N.A., individually and as
Administrative Agent,
By/s/Carolyn Sheridan
Name:Carolyn Sheridan
Title: Vice President Citibank, N.A.
Attention:
Facsimile number:
PRICING SCHEDULE
Each of "Facility Fee Rate", "Euro-Dollar Margin", "Base Rate
Margin" and "CD Margin" means, for any day, the rate set forth below in the
row opposite such term and in the column corresponding to the Pricing Level
that applies on such day as determined based on the ratings by Moody's and
S&P:
Level I Level II Level III Level IV Level V
Pricing Level A-/A3 BBB+/Baa1 BBB/Baa2 BBB-/Baa3 <BBB-/Baa3
Facility Fee Rate .090% .110% .125% .150% .200%
Euro-Dollar Margin .335% .390% .500% .725% 1.050%
CD Margin 1.585% 1.640% 1.750% 1.975% 2.300%
Utilization Fee 0.125% 0.125% 0.125% 0.250% 0.250%
Base Rate Margin 0.000% 0.000% 0.000% 0.000% 0.050%
For purposes of this Schedule, the following terms have the
following meanings:
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Company
without third-party credit enhancement, and any rating assigned to any other
debt security of the Company shall be disregarded. The ratings in effect for
any day are those in effect at the close of business on such day. In the case
of split ratings from S&P and Moody's, the rating to be used to determine the
applicable Pricing Level is the higher of the two ratings (e.g., A-/Baa1
results in Level I Pricing) or, if the ratings differ by more than one Level
indicated above, the rating one above the lower of the two ratings; provided
that if one of such ratings is below Level III, the Pricing Level will be
based on the lower of such ratings.
EXHIBIT A
NOTE
New York, New York
, 19
For value received, [name of relevant Borrower], a [relevant
Borrower's jurisdiction of incorporation] corporation (the "Borrower"),
promises to pay to the order of [name of Bank] (the "Bank"), for the account
of its Applicable Lending Office, the unpaid principal amount of each Loan
made by the Bank to the Borrower pursuant to the Credit Agreement referred to
below on the last day of the Interest Period relating to such Loan or as
otherwise provided in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Citibank, N.A.,
399 Park Avenue, New York, NY 10043.
All Loans made by the Bank, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Bank and, if the Bank so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding may be endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof, provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit
Agreement dated as of October 28, 1999 among CK Witco Corporation, the
Eligible Subsidiaries referred to therein, the banks listed on the signature
pages thereof, Citibank, N.A., as Administrative Agent, The Chase Manhattan
Bank, as Syndication Agent, and Bank of America, N.A. and Deutsche Bank
Securities Inc., as Co-Documentation Agents (as the same may be amended from
time to time, the "Credit Agreement"). Terms defined in the Credit Agreement
are used herein with the same meanings. Reference is made to the Credit
Agreement for provisions for the prepayment hereof and the acceleration of the
maturity hereof.
[The payment in full of the principal and interest on this note has,
pursuant to the provisions of the Credit Agreement, been unconditionally
guaranteed by CK Witco Corporation.]
[NAME OF RELEVANT BORROWER]
By
Name:
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Date Amount of Type of Amount of Maturity Notation
Loan Loan Principal Date Made By
Repaid
EXHIBIT B
OPINION OF JOHN T. FERGUSON, II, ESQ.,
GENERAL COUNSEL OF THE COMPANY
October 28, 1999
To the Banks and the Agents
Referred to Below
c/o Bank of America, N.A. and
Deutsche Bank Securities Inc.,
as Co-Documentation Agents
[ ]
Dear Sirs:
I am General Counsel of CK Witco Corporation (the "Company"). This
opinion is being rendered to you pursuant to Section 3.01(b) of the 364-Day
Credit Agreement dated as of October 28, 1999 (the "Credit Agreement") among
the Company, the Eligible Subsidiaries referred to therein, the Banks listed
on the signature pages thereof, The Chase Manhattan Bank, as Syndication
Agent, Citibank, N.A., as Administrative Agent, and Bank of America, N.A. and
Deutsche Bank Securities Inc., as Co-Documentation Agents. Terms defined in
the Credit Agreement are used herein as therein defined.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and officers of the Company and its
Subsidiaries and other instruments and have conducted such other
investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion. I have assumed, with your permission, that the
signatures (other than those of officers of the Company and its
Subsidiaries) on all the documents that I have examined are genuine.
Upon the basis of the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, and has
all corporate powers required to carry on its business as now conducted. Each
of the Company's Subsidiaries which is a "significant subsidiary" within the
meaning of Regulation S-X of the Securities and Exchange Commission is a
corporation validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers required to carry
on its business as now conducted.
2. The execution, delivery and performance by each Loan Party of the
Loan Documents to which it is a party are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and
require no action by or in respect of, or filing with, any governmental agency
or official.
3. The execution, delivery and performance by the Company of the
Credit Agreement and by the other Loan Parties of the Loan Documents to which
they are parties will not contravene, or constitute a default under, any
provision of applicable law or Regulation or of the articles of incorporation
or bylaws of any Loan Party or any agreement or instrument evidencing Debt of
any Loan Party or, to the best of my knowledge, any other agreement, judgment,
injunction, order, decree or other instrument binding upon any Loan Party or,
to the best of my knowledge, result in the creation or imposition of any Lien
on any asset of the Company or any of its Subsidiaries.
4. The Credit Agreement constitutes a valid and binding agreement of
the Company and the other Loan Documents constitute valid and binding
agreements of the Loan Parties that are party thereto.
5. Except as disclosed in the Company's S-4 as filed with the
Securities and Exchange Commission on July 28, 1999, there is no action, suit
or proceeding pending against, or to the best of my knowledge threatened
against or affecting, the Company or any of its Subsidiaries before any court
or arbitrator or any governmental body, agency or official, in which there is
a reasonable possibility of an adverse decision which could materially
adversely affect the business or consolidated financial position of the
Company and its Consolidated Subsidiaries, considered as a whole, or which in
any manner draws into question the validity of the Credit Agreement, any other
Loan Document or the Notes. For the purposes hereof, I have not regarded an
action, suit or proceeding to be "threatened" against the Company or any of
its Subsidiaries unless the potential litigant has manifested to the
management of the Company in writing an intention to institute the same.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without my prior written consent.
Very truly yours,
EXHIBIT C
OPINION OF
WACHTELL LIPTON ROSEN & KATZ,
SPECIAL COUNSEL FOR THE COMPANY
October 28, 1999
To the Banks and the Agents
Referred to Below
c/o Bank of America, N.A. and Deutsche Bank
Securities Inc., as Co-Documentation Agents
[ ]
[ ]
Dear Sirs:
We have acted as special counsel to CK Witco Corporation, a Delaware
corporation (the "Company"), in connection with the 364-Day Credit Agreement
(the "Credit Agreement") dated as of October 28, 1999 among the Company, the
Eligible Subsidiaries referred to therein, the banks listed on the signature
pages thereof (the "Banks"), The Chase Manhattan Bank, as Syndication Agent,
Citibank, N.A., as Administrative Agent and Bank of America, N.A. and Deutsche
Bank Securities Inc., as Co-Documentation Agents (the "Agents"). This opinion
is being delivered pursuant to Section 3.01(c) of the Credit Agreement. Terms
defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of the
Credit Agreement and its Notes [and by each Loan Party that is organized under
the laws of Delaware or New York of the Loan Documents to which such Loan
party is a party] are within the corporate powers of the Company and such Loan
Parties, respectively, and have been duly authorized by a necessary corporate
action.
2. The Loan Documents constitute valid and binding agreements of the
Company and the Loan Parties party thereto, in each case enforceable against
the Company and such Loan Parties in accordance with their respective terms,
except to the extent the same may be limited by applicable bankruptcy,
moratorium, insolvency, reorganization or similar laws of general application
and by general principles of equity (whether considered in a proceeding at law
or in equity).
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the General
Corporation Law of the State of Delaware. In giving the foregoing opinion, we
express no opinion as to the effect (if any) of any law of any jurisdiction
(except the State of New York) in which any Bank is located which limits the
rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _______, 19_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), [CK WITCO CORPORATION (the
"Company"), CITIBANK, N.A., as Administrative Agent and BANK OF AMERICA, N.A.
and DEUTSCHE BANK SECURITIES INC. as Co-Documentation Agents (collectively the
"Agents")].
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the 364-Day Credit Agreement dated as of October 28, 1999 among the
Company, the Eligible Subsidiaries referred to therein, the Assignor and the
other Banks party thereto, as Banks, and the Agents (as the same may be
amended or modified from time to time, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans in an aggregate amount at any time outstanding not to
exceed $_________________;
WHEREAS, Committed Loans made by the Assignor under the Credit
Agreement in the aggregate amount of $_____ are outstanding at the
date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of
its Commitment thereunder in an amount equal to $_________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and
assume the corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, (the Company and
the Agents) and the payment of the amounts specified in Section 3 required to
be paid on the date hereof (i) the Assignee shall, as of the date hereof,
succeed to the rights and be obligated to perform the obligations of a Bank
under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have
been assumed by the Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof, in Dollars (in Federal Funds), the amount heretofore agreed
between them.1 It is understood that facility fees accrued to the date hereof
are for the account of the Assignor and such fees accruing from and including
the date hereof are for the account of the Assignee. Each of the Assignor and
the Assignee hereby agrees that if it receives any amount under the Credit
Agreement which is for the account of the other party hereto, it shall receive
the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
[SECTION 4. Consent of the Company and the Agents. This Agreement is
conditioned upon the consent of the Company and the Agents pursuant to
Section 11.06(c) of the Credit Agreement. The execution of this Agreement by
the Company and the Agents is evidence of this consent. Pursuant to
Section 11.06(c) the Borrower agrees, if requested by the Assignee, to execute
and deliver a Note payable to the order of the Assignee to evidence the
assignment and assumption provided for herein.]
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition, or
statements of any Borrower, or the validity and enforceability of the
obligations of any Borrower in respect of the Credit Agreement or any Note.
The Assignee acknowledges that it has, independently and without reliance on
the Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrowers.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By
Name:
Title:
[ASSIGNEE]
By
Name:
Title:
[CK WITCO CORPORATION
By
Name:
Title: ]
CITIBANK, N.A., as Administrative
Agent
By
Name:
Title:
[BANK OF AMERICA, N.A., as Co-
Documentation Agent,
By
Name:
Title: ]
[DEUTSCHE BANK SECURITIES INC., as
Co-Documentation Agent,
By
Name:
Title: ]
1 Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any up
front fee to be paid by the Assignor to the Assignee.
EXHIBIT E
FORM OF MONEY MARKET QUOTE REQUEST
[Date]
To: Citibank, N.A. (the "Administrative Agent")
From: [Name of Relevant Borrower]
Re: 364-Day Credit Agreement (the "Credit Agreement") dated as of
October 28, 1999 among CK Witco Corporation, the Eligible
Subsidiaries referred to therein, and the Banks and Agents listed
on the signature pages thereof
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing:
Principal Amount 1 Interest Period 2
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
[Name of Relevant Borrower]
By
Name:
Title:
1 Amount must be equal to $5,000,000 or a larger multiple of $1,000,000.
2 Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest Period.
EXHIBIT F
FORM OF INVITATION FOR MONEY MARKET QUOTES
To: [Name of Bank]
Re: Invitation for Money Market Quotes to [Name of Borrower] (the
"Borrower")
Pursuant to Section 2.03 of the 364-Day Credit Agreement dated as of
October 28, 1999 among CK Witco Corporation, the Eligible Subsidiaries
referred to therein, the Banks and Agents (including the undersigned) parties
thereto, we are pleased on behalf of the Borrower to invite you to submit
Money Market Quotes to the Borrower for the following proposed Money Market
Borrowing(s):
Date of Borrowing:
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.]
[9:30 A.M.] (New York City/London time) on [date].
CITIBANK, N.A., as Administrative Agent
By
Authorized Officer
EXHIBIT G
FORM OF 364-DAY MONEY MARKET QUOTE
To: Citibank, N.A., as Administrative Agent
Re: Money Market Quote to [Name of Borrower] (the "Borrower")
In response to your invitation on behalf of the Borrower dated
______________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing:
4. We hereby offer to make Money Market Loan(s) in the following
principal amounts, for the following Interest Periods and at the following
rates:
Principal Interest Money Market
Amount** Period*** [Margin****][Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market Loans for which
the above offers may be accepted shall not exceed $__________________.]**
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the 364-Day Credit
Agreement dated as of October 28, 1999, among CK Witco Corporation, the
Eligible Subsidiaries referred to therein, and the Banks and Agents listed on
the signature pages thereof, irrevocably obligates us to make the Money Market
Loan(s) for which any offer(s) are accepted, in whole or in part.
Very truly yours,
Dated: ____________________ [NAME OF BANK]
By:
Authorized Officer
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Bank is willing to lend. Bids must be made for
an amount equal to $5,000,000 or a larger multiple of $1,000,000.
*** Not less than one month or not less than 7 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/10,000 of
1%) and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
EXHIBIT H
FORM OF ELECTION TO PARTICIPATE
__________________, 19__
CITIBANK, N.A., as Administrative Agent for the Banks named in the 364-Day
Credit Agreement dated as of October 28, 1999 among CK Witco Corporation, the
Eligible Subsidiaries referred to therein, such Banks, such Administrative
Agent and Bank of America, N.A. and Deutsche Bank Securities Inc., as Co-
Documentation Agents (the "Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to be an Eligible Subsidiary for
purposes of the Credit Agreement, effective from the date hereof until an
Election to Terminate shall have been delivered on behalf of the undersigned
in accordance with the Credit Agreement. The undersigned confirms that the
representations and warranties set forth in Article 9 of the Credit Agreement
are true and correct as to the undersigned as of the date hereof, and the
undersigned hereby agrees to perform all the obligations of an Eligible
Subsidiary under, and to be bound in all respects by the terms of, the Credit
Agreement as if the undersigned were a signatory party thereto.
The address to which all notices to the undersigned under the Credit
Agreement should be directed is:
This instrument shall be construed in accordance with and governed
by the laws of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By
Title:
The undersigned hereby confirms that [name of Eligible Subsidiary] is an
Eligible Subsidiary for purposes of the Credit Agreement described above.
CK Witco Corporation
By
Name:
Title:
Receipt of the above Election to Participate is hereby acknowledged
on and as of the date set forth above.
CITIBANK, N.A., as Administrative Agent
By
Name:
Title:
EXHIBIT I
FORM OF ELECTION TO TERMINATE
__________________, 19__
CITIBANK, N.A., as Administrative Agent for the Banks named in the 364-Day
Credit Agreement dated as of October 28, 1999 among CK Witco Corporation, the
Eligible Subsidiaries referred to therein, such Banks, such Administrative
Agent, The Chase Manhattan Bank, as Syndication Agent, and Bank of America,
N.A. and Deutsche Bank Securities Inc., as Co-Documentation Agents (the
"Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to terminate its status as an
Eligible Subsidiary for purposes of the Credit Agreement, effective as of the
date hereof. The undersigned hereby represents and warrants that all principal
and interest on all Notes of the undersigned and all other amounts payable by
the undersigned pursuant to the Credit Agreement have been paid in full on or
prior to the date hereof. Notwithstanding the foregoing, this Election to
Terminate shall not affect any obligation of the undersigned under the Credit
Agreement or under any Note heretofore incurred.
This instrument shall be construed in accordance with and governed
by the laws of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By
Title:
The undersigned hereby confirms that the status of [name of Eligible
Subsidiary] as an Eligible Subsidiary for purposes of the Credit Agreement
described above is terminated as of the date hereof
CK WITCO CORPORATION
By
Name:
Title:
Receipt of the above Election to Terminate is hereby acknowledged on and as
of the date set forth above.
CITIBANK, N.A., as Administrative
Agent
By
Name:
Title:
EXHIBIT J
OPINION OF
COUNSEL FOR THE BORROWER
(BORROWINGS BY ELIGIBLE SUBSIDIARIES)
[Dated as provided
in Section 3.03 of
the Credit Agreement]
To the Banks and the Agents Referred to Below
c/o Citibank, N.A., as Administrative Agent
[ ]
[ ]
Dear Sirs:
I am counsel to [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation (the "Borrower") and give this opinion pursuant to
Section 3.03(a) of the 364-Day Credit Agreement (the "Credit Agreement") dated
as of October 28, 1999 among CK Witco Corporation (the "Company"), the
Eligible Subsidiaries referred to therein, the Banks listed on the signature
pages thereof, Citibank, N.A., as Administrative Agent, and Bank of America,
N.A. and Deutsche Bank Securities Inc., as Co-Documentation Agents. Terms
defined in the Credit Agreement are used herein as therein defined.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations
of fact and law as I have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of [jurisdiction of incorporation], and is
a Wholly-Owned Consolidated Subsidiary.
2. The execution and delivery by the Borrower of its Election to
Participate and its Notes and the performance by the Borrower of the Credit
Agreement and its Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the
Borrower or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or the Company or any of its Subsidiaries
or result in the creation or imposition of any Lien on any asset of the
Company or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and its Notes constitute valid and binding obligations of the
Borrower.
4. Except as disclosed in the Borrower's Election to Participate,
there is no income, stamp or other tax of [jurisdiction of incorporation and,
if different, principal place of business], or any taxing authority thereof or
therein, imposed by or in the nature of withholding or otherwise, which is
imposed on any payment to be made by the Borrower pursuant to the Credit
Agreement or its Notes, or is imposed on or by virtue of the execution,
delivery or enforcement of its Election to Participate or of its Notes.
Very truly yours,
EXHIBIT K
364-DAY SUBSIDIARY GUARANTEE AGREEMENT (together with instruments executed and
delivered pursuant to Section 19, this "Agreement") dated as of October 28,
1999, among each of the subsidiaries of CK Witco Corporation (the "Company")
listed on Schedule I hereto (the "Subsidiary Guarantors"), and CITIBANK, N.A.,
a national banking association ("Citibank"), as administrative agent (in such
capacity, the "Administrative Agent") for the Banks (as defined in the Credit
Agreement referred to below).
Reference is made to the 364-Day Credit Agreement dated as of
October 28, 1999, (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among the Company, the Banks (as defined in
Article I thereof) and the Administrative Agent for the Banks. Capitalized
terms used and not defined herein are used with the meanings assigned to such
terms in the Credit Agreement.
The Banks have agreed to make Loans to the Company and the Eligible
Subsidiaries pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. Each of the Subsidiary Guarantors is a
Subsidiary of the Company and acknowledges that it will derive substantial
benefit from the making of the Loans by the Banks to the Borrowers. The
obligations of the Banks to make Loans are conditioned on, among other things,
the execution and delivery by the Subsidiary Guarantors of a Subsidiary
Guarantee Agreement in the form hereof. As consideration therefor and in
order to induce the Banks to make Loans, the Subsidiary Guarantors are willing
to execute this Agreement for the benefit of the Administrative Agent, the
Banks and each counterparty to a Derivatives Obligation with the Borrowers
which was an Affiliate of a Bank at the time such Derivatives Obligation was
entered into (collectively, the "Lending Parties") .
Accordingly, the parties hereto agree as follows:
SECTION 1. Subsidiary Guarantee. Each Subsidiary Guarantor
unconditionally guarantees, jointly with the other Subsidiary Guarantors and
severally, as a primary obligor and not merely as a surety, the due and
punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise and (ii) all other monetary obligations, including
fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Borrowers to the Lending Parties under this Agreement, the Credit
Agreement and the other Loan Documents, (b) the due and punctual performance
of all covenants, agreements, obligations and liabilities of the Borrowers
under or pursuant to this Agreement, the Credit Agreement and the other Loan
Documents, (c) the due and punctual payment and performance of all the
covenants, agreements, obligations and liabilities of each Loan Party under or
pursuant to this Agreement and the other Loan Documents, and (d) unless
otherwise agreed upon in writing by the applicable Bank party thereto, the due
and punctual payment and performance of all obligations of the Borrowers,
monetary or otherwise, under each Derivatives Obligation entered into with
any counterparty that was a Bank (or an Affiliate of a Bank) at the time such
Derivatives Obligation was entered into (all the monetary and other
obligations referred to in the preceding lettered clauses of this paragraph
being referred to collectively as the "Obligations"). Each Subsidiary
Guarantor waives notice of and hereby consents to any agreements or
arrangements whatsoever by the Lending Parties with any other person
pertaining to the Obligations, including agreements and arrangements for
payment, extension, renewal, subordination, composition, arrangement,
discharge or release of the whole or any part of the Obligations, or for the
discharge or surrender of any or all security, or for the compromise, whether
by way of acceptance of part payment or otherwise, and the same shall in no
way impair such Subsidiary Guarantor's liability hereunder.
SECTION 2. Obligations Not Waived. To the fullest extent permitted
by applicable law, each Subsidiary Guarantor waives presentment to, demand of
payment from and protest to the Borrowers or any other person of any of the
Obligations, and also waives notice of acceptance of its guarantee, notice of
protest for nonpayment, and all other formalities. To the fullest extent
permitted by applicable law, the obligations of each Subsidiary Guarantor
hereunder shall not be affected by (a) the failure of any Loan Party to assert
any claim or demand or to enforce or exercise any right or remedy against the
Company, the Borrowers or any other Subsidiary Guarantor under the provisions
of the Credit Agreement, any other Loan Document or otherwise, (b) any
extension, renewal or increase of or in any of the Obligations, (c) any
rescission, waiver, amendment or modification of, or any release from, any of
the terms or provisions of this Agreement, the Credit Agreement, any other
Loan Document, any guarantee or any other agreement or instrument, including
with respect to any other Subsidiary Guarantor under this Agreement, (d) the
release of (or the failure to perfect a security interest in) any of the
security held by or on behalf of the Administrative Agent or any other Lending
Party or (e) the failure or delay of any Lending Party to exercise any right
or remedy against any other guarantor of the Obligations.
SECTION 3. Security. Each of the Subsidiary Guarantors authorizes
the Administrative Agent to, subject to the terms of any security agreement
that may hereafter be entered into by the Administrative Agent and any
Subsidiary Guarantor or Borrower, (a) take and hold security for the payment
of this Subsidiary Guarantee and the Obligations and exchange, enforce, waive
and release any such security, (b) apply such security and direct the order or
manner of sale thereof as it in its sole discretion may determine subject to
the terms of any other Loan Documents and (c) release or substitute any one or
more endorsees, other guarantors or other obligors.
SECTION 4. Guarantee of Payment. Each Subsidiary Guarantor further
agrees that its guarantee constitutes a guarantee of payment when due and not
of collection, and waives any right to require that any resort be had by the
Administrative Agent or any other Lending Party to any of the security held
for payment of the Obligations or to any balance of any deposit account or
credit on the books of the Administrative Agent or any other Lending Party
in favor of the Borrowers or any other person.
SECTION 5. No Discharge or Diminishment of Guarantee. The
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than
the indefeasible payment in full in cash of the Obligations), including any
claim of waiver, release, surrender, alteration or compromise of any of the
Obligations, and shall not be subject to any defense (other than a defense of
payment) or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations
of each Subsidiary Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any other
Lending Party to assert any claim or demand or to enforce any remedy under the
Credit Agreement, any other Loan Document, any guarantee or any other
agreement or instrument, by any amendment, waiver or modification of any
provision of the Credit Agreement or any other Loan Document or other
agreement or instrument, by any default, failure or delay, wilful or
otherwise, in the performance of the Obligations, or by any other act,
omission or delay to do any other act that may or might in any manner or to
any extent vary the risk of such Subsidiary Guarantor or that would otherwise
operate as a discharge of such Subsidiary Guarantor as a matter of law or
equity (other than the indefeasible payment in full in cash of all the
Obligations) or which would impair or eliminate any right of such Subsidiary
Guarantor to subrogation.
SECTION 6. Defenses Waived. To the fullest extent permitted by
applicable law, each of the Subsidiary Guarantors waives any defense based on
or arising out of the unenforceability of the Obligations or any part thereof
from any cause or the cessation from any cause of the liability (other than
the final and indefeasible payment in full in cash of the Obligations) of the
Borrowers or any other person. The Administrative Agent and the other
Lending Parties may, at their election, foreclose on any security held by one
or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust
any part of the Obligations, make any other accommodation with the Borrowers
or any other guarantor or exercise any other right or remedy available to them
against the Borrowers or any other guarantor, without affecting or impairing
in any way the liability of any Subsidiary Guarantor hereunder except to the
extent the Obligations have been fully, finally and indefeasibly paid in cash.
Pursuant to applicable law, each of the Subsidiary Guarantors waives any
defense arising out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such Subsidiary
Guarantor against the Borrowers or any other guarantor or any security.
SECTION 7. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative
Agent or any other Lending Party has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Borrowers or
any other Loan Party to pay any Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each Subsidiary Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Administrative Agent or such other Lending
Party as designated thereby in cash an amount equal to the unpaid principal
amount of such Obligations then due, together with accrued and unpaid interest
and fees on such Obligations. Upon payment by any Subsidiary Guarantor of any
sums to the Administrative Agent or any Lending Party as provided above, all
rights of such Subsidiary Guarantor against the Borrowers arising as a result
thereof by way of right of subrogation, contribution, reimbursement, indemnity
or otherwise shall in all respects be subordinate and junior in right of
payment to the prior indefeasible payment in full in cash of all the
Obligations. In addition, any indebtedness of the Borrowers or any Subsidiary
now or hereafter held by any Subsidiary Guarantor is hereby subordinated in
right of payment to the prior payment in full of the Obligations. If at any
time when any Obligation then due and owing has not been paid, any amount
shall be paid to any Subsidiary Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such
indebtedness, such amount shall be held in trust for the benefit of the
Lending Parties and shall forthwith be paid to the Administrative Agent to be
credited against the payment of the Obligations, whether matured or unmatured,
in accordance with the terms of the Loan Documents.
SECTION 8. Information. Each of the Subsidiary Guarantors assumes
all responsibility for being and keeping itself informed of the Borrowers'
financial condition and assets, all other circumstances bearing upon the risk
of nonpayment of the Obligations and the nature, scope and extent of the
risks that such Subsidiary Guarantor assumes and incurs hereunder and agrees
that none of the Administrative Agent or the other Lending Parties will have
any duty to advise any of the Subsidiary Guarantors of information known to it
or any of them regarding such circumstances or risks.
SECTION 9. Representations and Warranties. Each of the Subsidiary
Guarantors represents and warrants as to itself that all representations and
warranties relating to it contained in the Credit Agreement are true and
correct.
SECTION 10. Termination. The Guarantees made hereunder (a) shall
terminate when (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on all Loans and (ii) all other
obligations then due and owing, have in each case been indefeasibly paid in
full and the Banks have no further commitment to lend under the Credit
Agreement and (b) shall continue to be effective or be reinstated, as the case
may be, if at any time any payment, or any part thereof, on any Obligation is
rescinded or must otherwise be restored by any Lending Party upon the
bankruptcy or reorganization of the Company, the Borrowers, or any Subsidiary
Guarantor or otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments;
Releases. Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns of
such party; and all covenants, promises and agreements by or on behalf of the
Subsidiary Guarantors that are contained in this Agreement shall bind and
inure to the benefit of each party hereto and their respective successors and
assigns. This Agreement shall become effective as to any Subsidiary Guarantor
when a counterpart hereof (or a Supplement referred to in Section 19) executed
on behalf of such Subsidiary Guarantor shall have been delivered to the
Administrative Agent and a counterpart hereof (or a Supplement referred to in
Section 19) shall have been executed on behalf of the Administrative Agent,
and thereafter shall be binding upon such Subsidiary Guarantor and the
Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Subsidiary Guarantor, the Administrative Agent
and the other Lending Parties, and their respective successors and assigns,
except that no Subsidiary Guarantor shall have the right to assign its rights
or obligations hereunder or any interest herein (and any such attempted
assignment shall be void). This Agreement shall be construed as a separate
agreement with respect to each Subsidiary Guarantor and may be amended,
modified, supplemented, waived or released with respect to any Subsidiary
Guarantor without the approval of any other Subsidiary Guarantor and without
affecting the obligations of any other Subsidiary Guarantor. The
Administrative Agent is hereby expressly authorized to, and agrees upon
request of the Company it will, release any Subsidiary Guarantor from its
obligations hereunder in the event (i) that all the capital stock of such
Subsidiary Guarantor shall be sold, transferred or otherwise disposed of to a
person that is not an Affiliate of the Company in a transaction permitted by
Section 5.09 of the Credit Agreement or (ii) the Company requests such release
in writing accompanied by a certificate of a Principal Officer certifying that
no Default shall have occurred and be continuing and that the requirements of
Section 5.11 of the Credit Agreement shall be met immediately following such
release.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such
a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent hereunder and of the other Lending Parties under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any Subsidiary Guarantor therefrom
shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. No notice or
demand on any Subsidiary Guarantor in any case shall entitle such Subsidiary
Guarantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into
between the Subsidiary Guarantors to which such waiver, amendment or
modification relates and the Administrative Agent with consent required under
the Credit Agreement.
SECTION 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Notices. All communications and notices hereunder
shall be in writing and given as provided in Section 11.01 of the Credit
Agreement. All communications and notices hereunder to each Subsidiary
Guarantor shall be given to it at its address set forth in Schedule I with a
copy to the Company.
SECTION 15. Survival of Agreement; Severability. (a) All
covenants, agreements, representations and warranties made by the Subsidiary
Guarantors herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Administrative
Agent and the other Secured Parties and shall survive the making by the Banks
of the Loans regardless of any investigation made by the Lending Parties or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid.
(b) In the event any one or more of the provisions contained in
this Agreement or in any other Loan Document should be held invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute a single contract, and shall become
effective as provided in Section 11. Delivery of an executed signature page
to this Agreement by facsimile transmission shall be as effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process. (a) Each
Subsidiary Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York
State court or Federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in
such New York State court or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any other Secured Party may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against any
Subsidiary Guarantor or its properties in the courts of any jurisdiction.
(b) Each Subsidiary Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection that it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or the other Loan Documents in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process by mail to the address provided in Section 14. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 18. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.
SECTION 19. Additional Subsidiary Guarantors. Pursuant to
Section 5.11 of the Credit Agreement, the Company must ensure that
Subsidiaries are (or become within 10 Domestic Business Days of being formed
or acquired) Subsidiary Guarantors so that certain asset and revenue criteria
are met. Upon execution and delivery after the date hereof by the
Administrative Agent and such a Subsidiary of a Supplement in the form of
Annex 1, such Subsidiary shall become a Subsidiary Guarantor hereunder with
the same force and effect as if originally named as a Subsidiary Guarantor
herein. The execution and delivery of any Supplement adding an additional
Subsidiary Guarantor as a party to this Agreement shall not require the
consent of any other Subsidiary Guarantor hereunder. The rights and
obligations of each Subsidiary Guarantor hereunder (other than any Subsidiary
Guarantor released pursuant to Section 11 hereof) shall remain in full force
and effect notwithstanding (a) the addition of any new Subsidiary Guarantor as
a party to this Agreement or (b) the release of any other Subsidiary Guarantor
pursuant to Section 11 hereof.
SECTION 20. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lending Party is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other Indebtedness at any time
owing by such Lending Party to or for the credit or the account of any
Subsidiary Guarantor against any or all the obligations of such Subsidiary
Guarantor now or hereafter existing under this Agreement and the other Loan
Documents held by such Lending Party, irrespective of whether or not the
Administrative Agent or any Lending Party shall have made any demand under
this Agreement or any other Loan Document and although such obligations may be
unmatured. The rights of each Lending Party under this Section 20 are in
addition to other rights and remedies (including other rights of setoff) which
such Lending Party may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO,
By
Name:
Title:
CITIBANK, N.A., as
Administrative Agent,
By
Name:
Title:
Schedule I to the
Subsidiary Guarantee Agreement
Subsidiary Guarantor Address
Uniroyal Chemical Company, Inc.
World Headquarters
Benson Road
Middlebury, CT 06749
Attn: Chief Financial Officer
Annex 1 to the
Subsidiary Guarantee Agreement
SUPPLEMENT NO. dated as of , to the
364-Day Subsidiary Guarantee Agreement dated as of October 28, 1999 (the
"Subsidiary Guarantee Agreement"), among each of the subsidiaries of CK Witco
Corporation (the "Company") listed on Schedule I thereto (the "Subsidiary
Guarantors"), and CITIBANK, N.A., a national banking association ("Citibank"),
as administrative agent (in such capacity, the "Administrative Agent") for the
Lending Parties (as defined in the Subsidiary Guarantee Agreement).
A. Reference is made to the 364-Day Credit Agreement dated as of
October 28, 1999, (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among the Company, the Banks listed therein and
the Administrative Agent.
B. Capitalized terms used and not otherwise defined herein are used
with the meanings assigned to such terms in the Subsidiary Guarantee Agreement
and the Credit Agreement.
C. The Subsidiary Guarantors have entered into the Subsidiary
Guarantee Agreement in order to induce the Banks to make Loans. Pursuant to
Section 5.11 of the Credit Agreement, the Company must ensure that Domestic
Subsidiaries are (or become within 10 Domestic Business Days of being formed
or acquired) Subsidiary Guarantors so that certain asset and revenue criteria
are met. Section 19 of the Subsidiary Guarantee Agreement provides that
additional Subsidiaries may become Subsidiary Guarantors under the Subsidiary
Guarantee Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary of the Company (the "New
Subsidiary Guarantor") is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Subsidiary Guarantor under
the Subsidiary Guarantee Agreement in order to induce the Banks to make
additional Loans and as consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Subsidiary
Guarantor agree as follows:
SECTION 1. In accordance with Section 19 of the Subsidiary
Guarantee Agreement, the New Subsidiary Guarantor by its signature below
becomes a Subsidiary Guarantor under the Subsidiary Guarantee Agreement with
the same force and effect as if originally named therein as a Subsidiary
Guarantor and the New Subsidiary Guarantor hereby (a) agrees to all the terms
and provisions of the Subsidiary Guarantee Agreement applicable to it as a
Subsidiary Guarantor thereunder (including its guarantee of the Obligations)
and (b) represents and warrants that the representations and warranties made
by it as a Subsidiary Guarantor thereunder are true and correct on and as of
the date hereof. Each reference to a "Subsidiary Guarantor" in the Subsidiary
Guarantee Agreement shall be deemed to include the New Subsidiary Guarantor.
SECTION 2. The New Subsidiary Guarantor represents and warrants to
the Administrative Agent and the other Lending Parties that this Supplement
has been duly authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Subsidiary Guarantor and
the Administrative Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Subsidiary
Guarantee Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and in the Subsidiary Guarantee Agreement shall not in any
way be affected or impaired thereby (it being understood that the invalidity
of a particular provision hereof in a particular jurisdiction shall not in and
of itself affect the validity of such provision in any other jurisdiction).
The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 14 of the Subsidiary Guarantee
Agreement. All communications and notices hereunder to the New Subsidiary
Guarantor shall be given to it at the address set forth under its signature
below, with a copy to the Company.
SECTION 8. The New Subsidiary Guarantor agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, disbursements and other charges of
counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary Guarantor and the
Administrative Agent have duly executed this Supplement to the Subsidiary
Guarantee Agreement as of the day and year first above written.
[Name Of New Subsidiary Guarantor],
by
Name:
Title:
Address:
CITIBANK, N.A., as Administrative Agent,
by
Title:
EXHIBIT L
364-DAY INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT (together with
instruments executed and delivered pursuant to Section 11, this "Agreement")
dated as of October 28, 1999, among CK WITCO CORPORATION, a Delaware
corporation (the "Company"), each subsidiary of the Company listed on Schedule
I hereto (the "Subsidiary Guarantors") and CITIBANK, N.A., a national banking
association, as administrative agent (in such capacity, the "Administrative
Agent") for the Lending Parties (as defined below).
Reference is made to (a) the 364-Day Credit Agreement dated as of
October 28, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Company, the Banks listed therein and
the Administrative Agent and (b) the 364-Day Subsidiary Guarantee Agreement
dated as of October 28, 1999 (as amended, supplemented or otherwise modified
from time to time, the "Subsidiary Guarantee Agreement"), among the Subsidiary
Guarantors and the Administrative Agent. Capitalized terms used herein and
not defined herein are used with the meanings assigned to such terms in the
Credit Agreement.
The Banks have agreed to make Loans to the Borrowers pursuant to,
and upon the terms and subject to the conditions specified in, the Credit
Agreement. The Subsidiary Guarantors have guaranteed such Loans and the other
Obligations (as defined in the Subsidiary Guarantee Agreement) pursuant to the
Subsidiary Guarantee Agreement. The obligations of the Banks to make Loans
are conditioned on, among other things, the execution and delivery by the
Company and the Subsidiary Guarantors of an agreement in the form hereof.
Accordingly, the Company, each Subsidiary Guarantor and the
Administrative Agent agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such
rights of indemnity and subrogation as the Subsidiary Guarantors may have
under applicable law (but subject to Section 3), the Company agrees that in
the event a payment shall be made by any Subsidiary Guarantor under the
Subsidiary Guarantee Agreement, the Company shall indemnify such Subsidiary
Guarantor for the full amount of such payment and, until such indemnification
obligation shall have been satisfied, such Subsidiary Guarantor shall be
subrogated to the rights of the person to whom such payment shall have been
made to the extent of such payment.
SECTION 2. Contribution and Subrogation. Each Subsidiary Guarantor
(a "Contributing Guarantor") agrees (subject to Section 3) that, in the event
a payment shall be made by any other Subsidiary Guarantor under the Subsidiary
Guarantee and such other Subsidiary Guarantor (the "Claiming Guarantor") shall
not have been fully indemnified by the Company as provided in Section 1, the
Contributing Guarantor shall, to the extent the Claiming Guarantor shall not
have been so indemnified by the Company, indemnify the Claiming Guarantor in
an amount equal to the amount of such payment multiplied by a fraction of
which the numerator shall be the net worth of the Contributing Guarantor on
the date hereof (or, in the case of any Subsidiary Guarantor becoming a party
hereto pursuant to Section 11, the date of the Supplement hereto executed and
delivered by such Subsidiary Guarantor) and the denominator shall be the
aggregate net worth of all the Subsidiary Guarantors on the date hereof (or,
in the case of any Subsidiary Guarantor becoming a party hereto pursuant to
Section 11, the date of the Supplement hereto executed and delivered by such
Subsidiary Guarantor). Any Contributing Guarantor making any payment to a
Claiming Guarantor pursuant to this Section 2 shall be subrogated to the
rights of such Claiming Guarantor under Section 1 to the extent of such
payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Subsidiary Guarantors under
Sections 1 and 2 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated to
the indefeasible payment in full in cash of the Obligations. No failure on
the part of the Company or any Subsidiary Guarantor to make the payments
required by Sections 1 and 2 (or any other payments required under applicable
law or otherwise) shall in any respect limit the obligations and liabilities
of any Subsidiary Guarantor with respect to its obligations hereunder, and
each Subsidiary Guarantor shall remain liable for the full amount of the
obligations of such Subsidiary Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in
full force and effect so long as the Subsidiary Guarantee Agreement has not
been terminated, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Lending Party upon the
bankruptcy or reorganization of the Company, any Subsidiary Guarantor or
otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Administrative Agent or any Subsidiary Guarantor to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy by the Administrative Agent or any Subsidiary Guarantor preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder are cumulative and are not exclusive of any
other remedies provided by law. None of the Administrative Agent and the
Subsidiary Guarantors shall be deemed to have waived any rights hereunder
unless such waiver shall be in writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into
between the Company, the Subsidiary Guarantors and the Administrative Agent,
with any consent required under the Credit Agreement.
SECTION 7. Notices. All communications and notices hereunder shall
be in writing and given as provided in the Credit Agreement or the Subsidiary
Guarantee Agreement, as applicable, and addressed as specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the parties that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns. Neither the Company nor any Subsidiary Guarantor may
assign or transfer any of its rights or obligations hereunder (and any such
attempted assignment or transfer shall be void) without the prior written
consent of the Required Banks. Notwithstanding the foregoing, at the time any
Subsidiary Guarantor is released from its obligations under the Subsidiary
Guarantee Agreement in accordance with the Subsidiary Guarantee Agreement and
the Credit Agreement, such Subsidiary Guarantor will cease to have any rights
or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability. (a) All covenants
and agreements made by the Company and each Subsidiary Guarantor herein and in
the certificates or other instruments prepared or delivered in connection with
this Agreement or the other Loan Documents shall be considered to have been
relied upon by the Administrative Agent, the Banks and each Subsidiary
Guarantor, shall survive the making by the Banks of the Loans and shall
continue in full force and effect as long as the principal of or any accrued
interest on any Loans or any other fee or amount payable under the Credit
Agreement, this Agreement or any of the other Loan Documents is outstanding
and unpaid or the Commitments have not been terminated.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as
such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 10. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Subsidiary Guarantor when a counterpart bearing the signature
of such Subsidiary Guarantor shall have been delivered to the Administrative
Agent. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement.
SECTION 11. Additional Subsidiary Guarantors; Release. Pursuant to
Section 5.11 of the Credit Agreement, the Company must ensure that Domestic
Subsidiaries are (or become within 10 Domestic Business Days of being formed
or acquired) Subsidiary Guarantors so that certain asset and revenue criteria
are met. Upon execution and delivery, after the date hereof, by the
Administrative Agent and such a Subsidiary of an instrument in the form of
Annex 1 hereto, such Subsidiary shall become a Subsidiary Guarantor hereunder
with the same force and effect as if originally named as a Subsidiary
Guarantor hereunder. The execution and delivery of any instrument adding an
additional Subsidiary Guarantor as a party to this Agreement shall not require
the consent of any Subsidiary Guarantor hereunder. The rights and obligations
of each Subsidiary Guarantor hereunder (other than any Subsidiary Guarantor
released pursuant to this Section 11) shall remain in full force and effect
notwithstanding (a) the addition of any new Subsidiary Guarantor as a party to
this Agreement or (b) the release of any other Subsidiary Guarantor pursuant
to Section 11 of the Subsidiary Guarantee Agreement. Each Subsidiary
Guarantor shall be released from its obligations under this Agreement without
further action upon its release from its obligations under the Subsidiary
Guarantee Agreement in accordance with Section 11 thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the date first appearing
above.
CK WITCO CORPORATION,
by
Name:
Title:
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO,
by
Name:
Title:
CITIBANK, N.A., as Administrative
Agent,
by
Name:
Title:
SCHEDULE I
to the Indemnity, Subrogation
and Contribution Agreement
Subsidiary Guarantor Address
Uniroyal Chemical Company, Inc.
World Headquarters
Benson Road
Middlebury, CT 06749
Attn: Chief Financial Officer
Annex 1 to
the Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. (this "Supplement")
dated as of [ ], to the 364-Day Indemnity, Subrogation and Contribution
Agreement dated as of October 28, 1999 (as the same may be amended,
supplemented or otherwise modified from time to time, the "Indemnity,
Subrogation and Contribution Agreement"), among CK Witco Corporation, a
Delaware corporation (the "Company"), each subsidiary of the Company listed on
Schedule I thereto (the "Subsidiary Guarantors") and Citibank, N.A., a
national banking association, as administrative agent (in such capacity, the
"Administrative Agent") for the Banks.
A. Reference is made to (a) the 364-Day Credit Agreement dated as
of October 28, 1999, (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement") among the Company, the Banks listed therein
and the Administrative Agent and (b) the 364-Day Subsidiary Guarantee
Agreement dated as of October 28, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Subsidiary Guarantee Agreement"), among the
Subsidiary Guarantors and the Administrative Agent
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Indemnity, Subrogation
and Contribution Agreement and the Credit Agreement.
C. The Company and the Subsidiary Guarantors have entered into the
Indemnity, Subrogation and Contribution Agreement in order to induce the Banks
to make Loans. Pursuant to Section 5.11 of the Credit Agreement, the Company
must ensure that Subsidiaries are (or become within 10 Domestic Business Days
of being formed or acquired) Subsidiary Guarantors so that certain asset and
revenue criteria are met. Section 11 of the Indemnity, Subrogation and
Contribution Agreement provides that additional Subsidiaries may become
Subsidiary Guarantors under the Indemnity, Subrogation and Contribution
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary (the "New Guarantor") is executing
this Supplement in accordance with the requirements of the Credit Agreement to
become a Subsidiary Guarantor under the Indemnity, Subrogation and
Contribution Agreement in order to induce the Banks to make additional Loans
and as consideration for Loans previously made.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 11 of the Indemnity,
Subrogation and Contribution Agreement, the New Guarantor by its signature
below becomes a Subsidiary Guarantor under the Indemnity, Subrogation and
Contribution Agreement with the same force and effect as if originally named
therein as a Subsidiary Guarantor and the New Guarantor hereby agrees to all
the terms and provisions of the Indemnity, Subrogation and Contribution
Agreement applicable to it as a Subsidiary Guarantor thereunder. Each
reference to a "Subsidiary Guarantor" in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Guarantor.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Banks that this Supplement has been duly author-
ized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute
a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any
respect, neither party hereto shall be required to comply with such provision
for so long as such provision is held to be invalid, illegal or unenforceable,
but the validity, legality and enforceability of the remaining provisions
contained herein and in the Indemnity, Subrogation and Contribution Agreement
shall not in any way be affected or impaired. The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of
counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent
have duly executed this Supplement to the Indemnity, Subrogation and
Contribution Agreement as of the day and year first above written.
[Name Of New Guarantor],
by
Name:
Title:
Address:
CITIBANK, N.A., as Administrative
Agent,
by
Name:
Title: