EXECUTION COPY
364-DAY
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 21, 1994
among
EG&G, INC.,
THE LENDERS NAMED HEREIN
and
CHEMICAL BANK,
as Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . 1
SECTION 1.01. Defined Terms1
SECTION 1.02. Terms Generally11
ARTICLE II. THE CREDITS. . . . . . . . . . . . . .12
SECTION 2.01. Commitments . . . . . . . . . . . . .12
SECTION 2.02. Loans . . . . . . . . . . . . . . . .13
SECTION 2.03. Competitive Bid Procedure . . . . . .15
SECTION 2.04. Standby Borrowing Procedure . . . . .18
SECTION 2.05. Facility Fees . . . . . . . . . . . .19
SECTION 2.06. Repayment of Loans; Evidence of Debt 19
SECTION 2.07. Interest on Loans . . . . . . . . . .20
SECTION 2.08. Default Interest. . . . . . . . . . .21
SECTION 2.09. Alternate Rate of Interest. . . . . .21
SECTION 2.10. Termination and Reduction
of Commitments . . . . . . . . . . .22
SECTION 2.11. Prepayment. . . . . . . . . . . . . .22
SECTION 2.12. Reserve Requirements; Change
in Circumstances . . . . . . . . . .23
SECTION 2.13. Change in Legality. . . . . . . . . .25
SECTION 2.14. Indemnity . . . . . . . . . . . . . .26
SECTION 2.15. Pro Rata Treatment. . . . . . . . . .27
SECTION 2.16. Sharing of Setoffs. . . . . . . . . .27
SECTION 2.17. Payments. . . . . . . . . . . . . . .28
SECTION 2.18. Duty to Mitigate; Assignment of
Commitments Under Certain
Circumstances. . . . . . . . . . . .28
SECTION 2.19. Taxes . . . . . . . . . . . . . . . .29
ARTICLE III. REPRESENTATIONS AND WARRANTIES . . . .33
SECTION 3.01. Corporate Existence and Power . . . .33
SECTION 3.02. Corporate and Governmental
Authorization; Contravention . . . .33
SECTION 3.03. Binding Effect. . . . . . . . . . . .33
SECTION 3.04. Financial Information . . . . . . . .34
SECTION 3.05. Litigation. . . . . . . . . . . . . .34
SECTION 3.06. Compliance with ERISA . . . . . . . .34
SECTION 3.07. Taxes . . . . . . . . . . . . . . . .35
SECTION 3.08. Subsidiaries. . . . . . . . . . . . .35
SECTION 3.09. Representations and Warranties of
Each Borrowing Subsidiary. . . . . .35
SECTION 3.10. Federal Reserve Regulations . . . . .36
SECTION 3.11. Investment Company Act; Public
Utility Holding Company Act. . . . .37
SECTION 3.12. Environmental and Safety Matters. . .37
ARTICLE IV. CONDITIONS OF LENDING. . . . . . . . .38
SECTION 4.01. All Borrowings. . . . . . . . . . . .38
SECTION 4.02. Closing Date. . . . . . . . . . . . .38
SECTION 4.03. First Borrowing by Each
Borrowing Subsidiary . . . . . . . .39
ARTICLE V. COVENANTS. . . . . . . . . . . . . . .40
SECTION 5.01. Information . . . . . . . . . . . . .40
SECTION 5.02. Corporate Existence; Businesses and
Properties . . . . . . . . . . . . .42
SECTION 5.03. Insurance . . . . . . . . . . . . . .42
SECTION 5.04. Litigation and Other Notices. . . . .43
SECTION 5.05. Maintaining Records; Access to
Properties and Inspections . . . . .43
SECTION 5.06. Fixed Charge Coverage . . . . . . . .43
SECTION 5.07. Net Debt to Capitalization Ratio. . .43
SECTION 5.08. Negative Pledge . . . . . . . . . . .43
SECTION 5.09. Consolidations, Mergers and
Sales of Assets. . . . . . . . . . .45
ARTICLE VI. EVENTS OF DEFAULT. . . . . . . . . . .45
ARTICLE VII. GUARANTEE. . . . . . . . . . . . . . .49
ARTICLE VIII. THE ADMINISTRATIVE AGENT . . . . . . .51
ARTICLE IX. MISCELLANEOUS. . . . . . . . . . . . .55
SECTION 9.01. Notices. . . . . . . . . . . . . . .55
SECTION 9.02. Survival of Agreement. . . . . . . .55
SECTION 9.03. Binding Effect . . . . . . . . . . .56
SECTION 9.04. Successors and Assigns . . . . . . .56
SECTION 9.05. Expenses; Indemnity. . . . . . . . .59
SECTION 9.06. Applicable Law . . . . . . . . . . .60
SECTION 9.07. Waivers; Amendment . . . . . . . . .60
SECTION 9.08. Entire Agreement . . . . . . . . . .61
SECTION 9.09. Severability . . . . . . . . . . . .62
SECTION 9.10. Counterparts . . . . . . . . . . . .62
SECTION 9.11. Headings . . . . . . . . . . . . . .62
SECTION 9.12. Right of Setoff. . . . . . . . . . .62
SECTION 9.13. Jurisdiction; Consent to
Service of Process62
SECTION 9.14. Waiver of Jury Trial . . . . . . . .63
SECTION 9.15. Addition of Borrowing Subsidiaries .63
SECTION 9.16. Confidentiality. . . . . . . . . . .64
SECTION 9.17. Collateral . . . . . . . . . . . . .65
SECTION 9.18. Interest Rate Limitation . . . . . .65
Exhibits
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D-1 Form of Opinion of Murray Gross, Esq.
Exhibit D-2 Form of Opinion of Murray Gross, Esq.
Exhibit E Form of Borrowing Subsidiary Agreement
Schedules
Schedule 2.01 Commitments
Schedule 3.08 Subsidiaries
Schedule 3.12(a) Environmental and Safety Matters
Schedule 3.12(b) Environmental and Safety Matters
Schedule 3.12(c) Environmental and Safety Matters
/TABLE
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT (the "Agreement") dated as of March 21, 1994, among
EG&G, INC., a Massachusetts corporation (the "Company"), the
Borrowing Subsidiaries (as such term is defined herein;
together with the Company, the "Borrowers"), the lenders
listed in Schedule 2.01 (the "Lenders") and CHEMICAL BANK, a
New York banking corporation, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent").
The Lenders have been requested to extend credit to the
Borrowers to enable them to borrow on a standby revolving
credit basis on and after the date hereof and at any time and
from time to time prior to the Maturity Date a principal
amount not in excess of $175,000,000 at any time outstanding.
The Lenders have also been requested to provide a procedure
pursuant to which the Borrowers may invite the Lenders to bid
on an uncommitted basis on short-term borrowings by the
Borrowers. The proceeds of all such borrowings are to be used
for general corporate purposes, including commercial paper
back-up and to finance acquisitions. The Lenders are willing
to extend such credit on the terms and subject to the
conditions herein set forth. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms
in Article I.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement,
the following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any Standby Loan bearing interest
at a rate determined by reference to the Alternate Base Rate
in accordance with the provisions of Article II.
"Administrative Questionnaire" shall mean an
Administrative Questionnaire in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a
specified person, another person that directly or indirectly
controls or is controlled by or is under common control with
the person specified.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%)
equal to the greater of (a) the Prime Rate in effect on such
day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall
mean the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change
in the Prime Rate shall be effective on the date such change
is publicly announced as effective. "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the
rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers,
as released on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so released
for any day which is a Business Day, the arithmetic average
(rounded upwards to the next 1/100th of 1%), as determined by
the Administrative Agent, of the quotations for the day of
such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by
it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability
or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate
Base Rate shall be determined without regard to clause (b) of
the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in
the Alternate Base Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee in the
form of Exhibit C.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Board of Directors" shall mean the Board of Directors of
the Company or any duly authorized committee thereof.
"Borrowing" shall mean a group of Loans of a single Type
made by the Lenders to a single Borrower (or, in the case of
a Competitive Borrowing, by the Lender or Lenders whose
Competitive Bids have been accepted pursuant to Section 2.03)
on a single date and as to which a single Interest Period is
in effect.
"Borrowing Subsidiary" shall mean any Subsidiary which
shall have executed and delivered to the Administrative Agent
and each Lender a Borrowing Subsidiary Agreement.
"Borrowing Subsidiary Agreement" shall mean an agreement,
in the form of Exhibit E hereto, duly executed by the Company
and a Subsidiary.
"Business Day" shall mean any day (other than a day which
is a Saturday, Sunday or legal holiday in the State of New
York) on which banks are open for business in New York City;
provided, however, that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"A Change in Control" shall be deemed to have occurred if
(a) any person or group of persons shall have acquired
beneficial ownership of more than 50% of the outstanding
Voting Shares of the Company (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended, and the applicable rules and regulations thereunder),
or (b) during any period of 12 consecutive months, commencing
before or after the date of this Agreement, individuals who on
the first day of such period were directors of the Company
(together with any replacement or additional directors who
were nominated or elected by a majority of directors then in
office) cease to constitute a majority of the Board of
Directors of the Company.
"Closing Date" shall mean the date hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
the same may be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the
commitment of such Lender hereunder as set forth as of the
Closing Date in Schedule 2.01 hereto as such Lender's
Commitment may be permanently terminated or reduced from time
to time pursuant to Section 2.10. The Commitment of each
Lender shall automatically and permanently terminate on the
Maturity Date if not terminated earlier pursuant to the terms
hereof.
"Competitive Bid" shall mean an offer by a Lender to make
a Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by a Borrower pursuant to Section 2.03(d) in
the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive
Bid, (i) in the case of a Eurodollar Loan, the Margin, and
(ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made
pursuant to Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting
of a Competitive Loan or concurrent Competitive Loans from the
Lender or Lenders whose Competitive Bids for such Borrowing
have been accepted under the bidding procedure described in
Section 2.03.
"Competitive Loan" shall mean a Loan made pursuant to the
bidding procedure described in Section 2.03. Each Competitive
Loan shall be a Eurodollar Competitive Loan or a Fixed Rate
Loan.
"Consolidated EBIT" shall mean, for any period,
Consolidated Net Income of the Company and its Consolidated
Subsidiaries excluding the effect of non-cash extraordinary
items and accounting changes for such period, plus income
taxes during such period, plus the aggregate amount deducted
in determining such Consolidated Net Income for such period in
respect of Consolidated Net Interest Expense of the Company
and its Consolidated Subsidiaries for such period, all
determined in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the
consolidated net income (or loss) of the Company and its
Consolidated Subsidiaries for such period, determined in
accordance with GAAP.
"Consolidated Net Indebtedness" shall mean, for any date,
(a) the sum of all outstanding Indebtedness of the Company and
its Consolidated Subsidiaries as of such date less (b)
Eligible Investments as of such date, all determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Interest Expense" shall mean, for any
period, (a) the gross interest expense of the Company and its
Consolidated Subsidiaries (excluding the amortization of
transaction costs) in respect of Indebtedness included within
clauses (i) through (iv) of the definition of Indebtedness for
such period minus (b) interest income for such period, all
determined in accordance with GAAP.
"Consolidated Subsidiary" shall mean, 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 as of such date.
"Default" shall mean any event or condition which upon
notice, lapse of time or both would constitute an Event of
Default.
"dollars" or "$" shall mean lawful money of the
United States of America.
"Eligible Investments" shall mean:
(a) cash and cash equivalents;
(b) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by,
the United States of America (or any agency thereof to the
extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing
within one year from the date of acquisition thereof by the
Company or any Subsidiary;
(c) investments in money market funds the assets of which
are invested in obligations of the type described in (b) above
(irrespective of maturity); and
(d) other money market investments offered by any of the
Lenders or a commercial bank having the highest credit
rating available from Standard & Poor's Corporation or Moody's
Investors Service, Inc. and having maturities of less than 90
days.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as the same may be amended from time to
time.
"ERISA Affiliate" shall mean any trade or business
(whether or not incorporated) that, together with the Company,
is treated as a single employer under Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised
of Eurodollar Loans.
"Eurodollar Competitive Loan" shall mean any Competitive
Loan bearing interest at a rate determined by reference to the
LIBO Rate in accordance with the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive
Loan or Eurodollar Standby Loan.
"Eurodollar Standby Loan" shall mean any Standby Loan
bearing interest at a rate determined by reference to the LIBO
Rate in accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to
such term in Article VI.
"Existing Facilities" shall mean (i) the $150,000,000
Credit Agreement dated July 1, 1988 among the Company and the
lenders named therein and (ii) the $150,000,000 Credit
Agreement dated August 19, 1988 among the Company, the lenders
named therein and the Bank of New England as agent.
"Facility A Credit Agreement" shall mean the 3-Year
Competitive Advance and Revolving Credit Facility Agreement
dated the date hereof among the parties hereto.
"Facility Fee" shall have the meaning assigned to such
term in Section 2.05(a).
"Financial Officer" of any corporation shall mean the
chief financial officer, principal accounting officer,
treasurer or assistant treasurer of such corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised
of Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in
the form of a decimal to no more than four decimal places)
specified by the Lender making such Loan in its Competitive
Bid.
"GAAP" shall mean generally accepted accounting
principles, applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guaranteed Obligations" shall mean the principal of and
interest on the Loans made to, and the other obligations,
monetary or otherwise, of, the Borrowing Subsidiaries under
this Agreement.
"Indebtedness" of any person shall mean at any date,
without duplication, (i) all obligations of such person for
borrowed money (but not including non-recourse obligations of
such person), (ii) all obligations of such person evidenced by
bonds, debentures, notes or other similar instruments, except
trade payables and reimbursement obligations in respect of
performance bonds and standby letters of credit to the extent
the obligations underlying such letters of credit would not be
considered Indebtedness, all of which arise in the ordinary
course of business, (iii) all obligations of such person to
pay the deferred purchase price of property or services,
except trade accounts payable and accrued expenses arising in
the ordinary course of business, (iv) all obligations of such
person as lessee under capital leases, (v) all Indebtedness of
others secured by a Lien on any asset of such person (but not
including non-recourse obligations of such person) and (vi)
all Indebtedness of others guaranteed by such person.
"Interest Payment Date" shall mean (i) as to any
Eurodollar Loan for which the Interest Period is 1, 2 or 3
months, the last day of the Interest Period, (ii) as to any
Eurodollar Loan for which the Interest Period is 6 months, the
last day of the Interest Period and the date that would be the
last day of an Interest Period commencing on the same date but
having a duration of 3 months, (iii) as to any ABR Loan, the
last day of March, June, September and December in each year,
or if such day is not a Business Day, the next succeeding
Business Day and (iv) as to any Fixed Rate Loan, the last day
of the Interest Period applicable thereto.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing
or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as the case may be, and
ending on the numerically corresponding day (or, if there is
no numerically corresponding day, on the last day) in the
calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect, (b) as to any ABR Borrowing, the period
commencing on the date of such Borrowing or on the last day of
the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the earliest of
(i) the next succeeding March 31, June 30, September 30 or
December 31, (ii) the Maturity Date, and (iii) the date such
Borrowing is repaid or prepaid in accordance with Section 2.06
or Section 2.11 and (c) as to any Fixed Rate Borrowing, the
period commencing on the date of such Borrowing and ending on
the date specified in the Competitive Bids in which the offers
to make the Fixed Rate Loans comprising such Borrowing were
extended, which shall not be earlier than seven days after the
date of such Borrowing or later than 360 days after the date
of such Borrowing; provided, however, that if any Interest
Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding
Business Day unless, in the case of Eurodollar Loans only,
such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end
on the next preceding Business Day. Interest shall accrue
from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal
to the arithmetic average of the rates at which dollar
deposits approximately equal in principal amount to (i) in the
case of a Standby Borrowing, the Administrative Agent's
portion of such Eurodollar Borrowing and (ii) in the case of
a Competitive Borrowing, a principal amount that would have
been the Administrative Agent's portion of such Competitive
Borrowing had such Competitive Borrowing been a Standby
Borrowing, and for a maturity comparable to such Interest
Period are offered to the principal London offices of the
Administrative Agent (or, if the Administrative Agent does not
at the time maintain a London office, the principal London
office of any Affiliate of the Administrative Agent) in
immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period.
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind whatsoever
(including any conditional sale or other title retention
agreement, any lease in the nature thereof and the filing of
or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction).
"Loan" shall mean a Competitive Loan or a Standby Loan,
whether made as a Eurodollar Loan, an ABR Loan or a Fixed Rate
Loan, as permitted hereby.
"Margin" shall mean, as to any Eurodollar Competitive
Loan, the margin (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places) to
be added to or subtracted from the LIBO Rate in order to
determine the interest rate applicable to such Loan, as
specified in the Competitive Bid relating to such Loan.
"Margin Regulations" shall mean Regulations G, T, U and
X of the Board as from time to time in effect, and all
official rulings and interpretations thereunder or thereof.
"Margin Stock" shall have the meaning given such term
under Regulation U of the Board.
"Material Adverse Effect" shall mean a materially adverse
effect on the business, assets, operations or condition,
financial or otherwise, of the Company and its Consolidated
Subsidiaries taken as a whole.
"Maturity Date" shall mean March 20, 1995.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Company or
any ERISA Affiliate (other than one considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"person" shall mean any natural person, corporation,
business trust, joint venture, association, company,
partnership or government, or any agency or political
subdivision thereof.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"Plan" shall mean any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code that is
maintained for current or former employees, or any beneficiary
thereof, of the Company or any ERISA Affiliate.
"Register" shall have the meaning given such term in
Section 9.04(d).
"Regulation D" shall mean Regulation D of the Board as
from time to time in effect and all official rulings and
interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as
defined in Section 4043(b) of ERISA or the regulations issued
thereunder with respect to a Plan (other than a Plan
maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code
Section 414).
"Required Lenders" shall mean, at any time, Lenders
having Commitments representing more than 50% of the Total
Commitment or, for purposes of acceleration pursuant to clause
(ii) of Article VI, Lenders holding Loans representing more
than 50% of the aggregate principal amount of the Loans
outstanding.
"Shareholders' Equity" shall mean, with respect to the
Company at any date, (a) the sum of (i) common stock and
preferred stock taken at par or stated value at such date,
(ii) capital in excess of par value at such date, (iii)
cumulative translation adjustments and other adjustments
required by GAAP at such date and (iv) retained earnings (or
deficit) at such date minus (b) treasury stock at such date,
all determined in accordance with GAAP.
"Standby Borrowing" shall mean a Borrowing consisting of
simultaneous Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made
pursuant to Section 2.04 in the form of Exhibit A-5.
"Standby Loans" shall mean the revolving loans made
pursuant to Section 2.04. Each Standby Loan shall be a
Eurodollar Standby Loan or an ABR Loan.
"subsidiary" shall mean, with respect to any person (the
"parent"), any corporation, association or other business
entity of which securities or other ownership interests
representing more than 50% of the ordinary voting power are,
at the time as of which any determination is being made, owned
or controlled by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean a subsidiary of the Company.
"Total Commitment" shall mean, at any time, the aggregate
amount of Commitments of all the Lenders, as in effect at such
time.
"Type", when used in respect of any Loan or Borrowing,
shall refer to the Rate by reference to which interest on such
Loan or on the Loans comprising such Borrowing is determined.
For purposes hereof, "Rate" shall include the LIBO Rate, the
Alternate Base Rate and the Fixed Rate.
"Voting Shares" shall mean, as to any corporation,
outstanding shares of stock of any class of such corporation
entitled to vote in the election of directors, excluding
shares entitled so to vote only upon the happening of some
contingency.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in
Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding mascu-
line, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by
the phrase "without limitation." All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall
otherwise require. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time
to time; provided, however, that for purposes of determining
compliance with any covenant set forth in Article V, such
terms shall be construed in accordance with GAAP as in effect
on the date hereof applied on a basis consistent with the
application used in preparing the Company's audited financial
statements referred to in Section 3.04.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions and relying upon the representations and warranties
herein set forth, each Lender agrees, severally and not
jointly, to make Standby Loans to the Borrowers, at any time
and from time to time on and after the Closing Date hereof and
until the earlier of the Maturity Date and the termination of
the Commitment of such Lender, in an aggregate principal
amount at any time outstanding not to exceed such Lender's
Commitment minus the amount by which the Competitive Loans
outstanding at such time shall be deemed to have used such
Commitment pursuant to Section 2.15, subject, however, to the
conditions that (i) at no time shall (A) the sum of (x) the
outstanding aggregate principal amount of all Standby Loans
made by all Lenders plus (y) the outstanding aggregate
principal amount of all Competitive Loans made by all Lenders
exceed (B) the Total Commitment and (ii) at all times the
outstanding aggregate principal amount of all Standby Loans
made by each Lender shall equal the product of (A) the
percentage which its Commitment represents of the Total
Commitment times (B) the outstanding aggregate principal
amount of all Standby Loans.
Within the foregoing limits, the Borrowers may borrow,
pay or prepay and reborrow Standby Loans hereunder, on and
after the Closing Date and prior to the Maturity Date, subject
to the terms, conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be
made as part of a Borrowing consisting of Loans made by the
Lenders ratably in accordance with their respective
Commitments; provided, however, that the failure of any Lender
to make any Standby Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being under-
stood, however, that no Lender shall be responsible for the
failure of any other Lender to make any Loan required to be
made by such other Lender). Each Competitive Loan shall be
made in accordance with the procedures set forth in Section
2.03. The Standby Loans or Competitive Loans comprising any
Borrowing shall be in an aggregate principal amount which is
an integral multiple of $1,000,000 and not less than
$5,000,000 (or an aggregate principal amount equal to the
remaining balance of the available Commitments).
(b) Each Competitive Borrowing shall be comprised
entirely of Eurodollar Competitive Loans or Fixed Rate Loans,
and each Standby Borrowing shall be comprised entirely of
Eurodollar Standby Loans or ABR Loans, as any Borrower may
request pursuant to Section 2.03 or 2.04, as applicable. Each
Lender may at its option make any Eurodollar Loan by causing
any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that (i) any exercise of such option
shall not affect the obligation of such Borrower to repay such
Loan in accordance with the terms of this Agreement and (ii)
the Borrowers shall not be liable for increased costs under
Section 2.12 or 2.13 to the extent that (A) such costs could
be avoided by the use of a different branch or Affiliate to
make Eurodollar Loans and (B) such use would not, in the
judgment of such Lender, entail any expense for which such
Lender shall not be indemnified hereunder. Borrowings of more
than one Type may be outstanding at the same time; provided,
however, that no Borrowing shall be requested which, if made,
would result in an aggregate of more than 10 separate Standby
Borrowings comprised of Eurodollar Loans being outstanding
hereunder at any one time. For purposes of the foregoing,
Loans having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate
Loans.
(c) Subject to Section 2.02(d), each Lender shall make
each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to the
Administrative Agent in New York, New York, not later than
12:00 noon, New York City time, and the Administrative Agent
shall by 3:00 p.m., New York City time, credit the amounts so
received to the general deposit account of the applicable
Borrower with the Administrative Agent or, if a Borrowing
shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts
so received to the respective Lenders. Competitive Loans
shall be made by the Lender or Lenders whose Competitive Bids
therefor are accepted pursuant to Section 2.03 in the amounts
so accepted. Standby Loans shall be made by the Lenders pro
rata in accordance with Section 2.15. Unless the
Administrative Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's
portion of such Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in
accordance with this paragraph (c) and the Administrative
Agent may, in reliance upon such assumption, make available to
the applicable Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and
the applicable 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 such Borrower until the
date such amount is repaid to the Administrative Agent at (i)
in the case of such Borrower, the interest rate applicable at
the time to the Loans comprising such Borrowing and (ii) in
the case of such Lender, the Federal Funds Effective Rate. If
such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such
Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Any Borrower may refinance all or any part of any
Borrowing with a Borrowing of the same or a different Type
made pursuant to Section 2.03 or Section 2.04, subject to the
conditions and limitations set forth herein and elsewhere in
this Agreement, including refinancings of Competitive
Borrowings with Standby Borrowings and Standby Borrowings with
Competitive Borrowings. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid in accordance with
Section 2.06 with the proceeds of a new Borrowing hereunder
and the proceeds of the new Borrowing, to the extent they do
not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the Lenders to the
Administrative Agent or by the Administrative Agent to the
applicable Borrower pursuant to Section 2.02(c); provided,
however, that (i) if the principal amount extended by a Lender
in a refinancing is greater than the principal amount extended
by such Lender in the Borrowing being refinanced, then such
Lender shall pay such difference to the Administrative Agent
for distribution to the Lender described in (ii) below, (ii)
if the principal amount extended by a Lender in the Borrowing
being refinanced is greater than the principal amount being
extended by such Lender in the refinancing, the Administrative
Agent shall return the difference to such Lender out of
amounts received pursuant to (i) above and (iii) to the extent
any Lender fails to pay the Agent amounts due from it pursuant
to (i) above, any Loan or portion thereof being refinanced
with such amounts shall not be deemed repaid in accordance
with Section 2.06 and shall be payable by the Company.
SECTION 2.03. Competitive Bid Procedure. (a) In order
to request Competitive Bids, a Borrower shall hand deliver or
telecopy to the Administrative Agent a duly completed
Competitive Bid Request in the form of Exhibit A-1 hereto, to
be received by the Administrative Agent (i) in the case of a
Eurodollar Competitive Borrowing, not later than 10:00 a.m.,
New York City time, four Business Days before a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before a proposed Competitive Borrowing. No ABR
Loan shall be requested in, or made pursuant to, a Competitive
Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit A-1 may be rejected in
the Administrative Agent's sole discretion, and the
Administrative Agent shall promptly notify the applicable
Borrower of such rejection by telecopy. Each Competitive Bid
Request shall refer to this Agreement and specify whether the
Borrowing then being requested is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing, the date of such Borrowing (which
shall be a Business Day), the aggregate principal amount
thereof, which shall be in a minimum principal amount of
$5,000,000 and in an integral multiple of $1,000,000, and the
Interest Period with respect thereto (which may not end after
the Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopy (in the form set
forth in Exhibit A-2 hereto) the Lenders to bid, on the terms
and conditions of this Agreement, to make Competitive Loans.
(b) Each Lender invited to bid may, in its sole
discretion, make one or more Competitive Bids to the appli-
cable Borrower responsive to such Borrower's Competitive Bid
Request. Each Competitive Bid by a Lender must be received by
the Administrative Agent by telecopy, in the form of Exhibit
A-3 hereto, (i) in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing and (ii)
in the case of a Fixed Rate Borrowing, not later than 9:30
a.m., New York City time, on the day of a proposed Competitive
Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform
substantially to the format of Exhibit A-3 may be rejected by
the Administrative Agent, and the Administrative Agent shall
notify the Lender making such nonconforming bid of such
rejection as soon as practicable. Each Competitive Bid shall
refer to this Agreement and specify (x) the principal amount
(which shall be in a minimum principal amount of $5,000,000
and in an integral multiple of $1,000,000 and which may equal
the entire principal amount of the Competitive Borrowing
requested) of the Competitive Loan or Loans that the Lender is
willing to make, (y) the Competitive Bid Rate or Rates at
which the Lender is prepared to make the Competitive Loan or
Loans and (z) the Interest Period and the last day thereof.
If any Lender invited to bid shall elect not to make a
Competitive Bid, such Lender shall so notify the
Administrative Agent by telecopy (I) in the case of Eurodollar
Competitive Loans, not later than 9:30 a.m., New York City
time, three Business Days before a proposed Competitive
Borrowing, and (II) in the case of Fixed Rate Loans, not later
than 9:30 a.m., New York City time, on the day of a proposed
Competitive Borrowing; provided, however, that failure by any
Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Loan as part of such
Competitive Borrowing. A Competitive Bid submitted by a
Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the
applicable Borrower, by telecopy, of all the Competitive Bids
made, the Competitive Bid Rate and the principal amount of
each Competitive Loan in respect of which a Competitive Bid
was made and the identity of the Lender that made each bid.
The Administrative Agent shall send a copy of all Competitive
Bids to such Borrower for its records as soon as practicable
after completion of the bidding process set forth in this
Section 2.03.
(d) The applicable Borrower may in its sole and absolute
discretion, subject only to the provisions of this paragraph
(d), accept or reject any Competitive Bid referred to in
paragraph (c) above. Such Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in
the form of a Competitive Bid Accept/Reject Letter, whether
and to what extent it has decided to accept or reject any of
or all the bids referred to in paragraph (c) above, (x) in the
case of a Eurodollar Competitive Borrowing, not later than
10:30 a.m., New York City time, three Business Days before a
proposed Competitive Borrowing, and (y) in the case of a Fixed
Rate Borrowing, not later than 10:30 a.m., New York City time,
on the day of a proposed Competitive Borrowing; provided,
however, that (i) the failure of such Borrower to give such
notice shall be deemed to be a rejection of all the bids
referred to in paragraph (c) above, (ii) such Borrower shall
not accept a bid made at a particular Competitive Bid Rate if
it has decided to reject a bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids
accepted by such Borrower shall not exceed the principal
amount specified in the Competitive Bid Request, (iv) if such
Borrower shall accept a bid or bids made at a particular
Competitive Bid Rate but the amount of such bid or bids shall
cause the total amount of bids to be accepted to exceed the
amount specified in the Competitive Bid Request, then such
Borrower shall accept a portion of such bid or bids in an
amount equal to the amount specified in the Competitive Bid
Request less the amount of all other Competitive Bids accepted
with respect to such Competitive Bid Request, which
acceptance, in the case of multiple bids at such Competitive
Bid Rate, shall be made pro rata in accordance with the amount
of each such bid at such Competitive Bid Rate, and (v) except
pursuant to clause (iv) above, no bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of
$1,000,000; provided further, however, that if a Competitive
Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be
for a minimum of $1,000,000 or any integral multiple thereof,
and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in
the discretion of the applicable Borrower. A notice given
pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender whether or not its Competitive Bid has been
accepted (and if so, in what amount and at what Competitive
Bid Rate) by telecopy, and each successful bidder will
thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan or Loans in
respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within
five Business Days after the date of any previous Competitive
Bid Request.
(g) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit
such bid directly to the applicable Borrower one quarter of an
hour earlier than the latest time at which the other Lenders
are required to submit their bids to the Administrative Agent
pursuant to paragraph (b) above.
(h) All notices required by this Section 2.03 shall be
given in accordance with Section 9.01.
SECTION 2.04. Standby Borrowing Procedure. In order to
request a Standby Borrowing, a Borrower shall hand deliver or
telecopy to the Administrative Agent a duly completed Standby
Borrowing Request in the form of Exhibit A-5 (a) in the case
of a Eurodollar Standby Borrowing, not later than 10:30 a.m.,
New York City time, three Business Days before such Borrowing,
and (b) in the case of an ABR Borrowing, not later than 10:30
a.m., New York City time, on the day of such Borrowing. No
Fixed Rate Loan shall be requested or made pursuant to a
Standby Borrowing Request. Such notice shall be irrevocable
and shall in each case specify (i) whether the Borrowing then
being requested is to be a Eurodollar Standby Borrowing or an
ABR Borrowing; (ii) the date of such Standby Borrowing (which
shall be a Business Day) and the amount thereof; and (iii) if
such Borrowing is to be a Eurodollar Standby Borrowing, the
Interest Period with respect thereto, which shall not end
after the Maturity Date. If no election as to the Type of
Standby Borrowing is specified in any such notice, then the
requested Standby Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Standby
Borrowing is specified in any such notice, then the Borrower
shall be deemed to have selected an Interest Period of one
month's duration. Notwithstanding any other provision of this
Agreement to the contrary, no Standby Borrowing shall be
requested if the Interest Period with respect thereto would
end after the Maturity Date. The Administrative Agent shall
promptly advise the Lenders of any notice given pursuant to
this Section 2.04 and of each Lender's portion of the
requested Borrowing.
SECTION 2.05. Facility Fees. (a) The Company agrees to
pay to each Lender, through the Administrative Agent, on each
March 31, June 30, September 30 and December 31 (with the
first payment being due on March 31, 1994) and on the date on
which the Commitment of such Lender shall be terminated as
provided herein, a facility fee (a "Facility Fee"), at a rate
per annum equal to .08% per annum on the average daily amount
of the Commitment of such Lender, whether used or unused,
during the preceding quarter (or other period commencing on
the date of this Agreement, or ending with the Maturity Date
or the date on which the Commitment of such Lender shall be
terminated). All Facility Fees shall be computed on the basis
of the actual number of days elapsed in a year of 360 days.
The Facility Fee due to each Lender shall commence to accrue
on the date of this Agreement, and shall cease to accrue on
the earlier of the Maturity Date and the termination of the
Commitment of such Lender as provided herein.
(b) All Facility Fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for
distribution, if and as appropriate, among the Lenders. Once
paid, none of the Facility Fees shall be refundable under any
circumstances.
SECTION 2.06 Repayment of Loans; Evidence of Debt.
(a) Each Borrower hereby agrees that the outstanding
principal balance of each Standby Loan shall be payable on the
last day of the Interest Period applicable thereto and on the
Maturity Date and that the outstanding principal balance of
each Competitive Loan shall be payable on the last day of the
Interest Period applicable thereto. Each Loan shall bear
interest on the outstanding principal balance thereof as set
forth in Section 2.07.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the
indebtedness to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of
principal and interest payable and paid such Lender from time
to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in
which it will record (i) the amount of each Loan made
hereunder, the Type of each Loan made and the Interest Period
applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from
each Borrower to each Lender hereunder and (iii) the amount of
any sum received by the Administrative Agent hereunder from
each Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant
to paragraphs (b) and (c) of this Section 2.06 shall, to the
extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the
Borrowers to repay the Loans in accordance with their terms.
SECTION 2.07. Interest on Loans.
(a) Subject to the provisions of Section 2.08, the Loans
comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to (i) in
the case of each Eurodollar Standby Loan, the LIBO Rate for
the Interest Period in effect for such Borrowing plus 1/4 of
1% and (ii) in the case of each Eurodollar Competitive Loan,
the LIBO Rate for the Interest Period in effect for such
Borrowing plus the Margin offered by the Lender making such
Loan and accepted by the applicable Borrower pursuant to
Section 2.03.
(b) Subject to the provisions of Section 2.08, the Loans
comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of
365 or 366 days, as the case may be, for periods during which
the Alternate Base Rate is determined by reference to the
Prime Rate and 360 days for other periods) at a rate per annum
equal to the Alternate Base Rate.
(c) Subject to the provisions of Section 2.08, each
Fixed Rate Loan shall bear interest at a rate per annum
(computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to the fixed rate of interest
offered by the Lender making such Loan and accepted by the
Borrower pursuant to Section 2.03.
(d) Interest on each Loan shall be payable on each
Interest Payment Date applicable to such Loan except as
otherwise provided in this Agreement. The applicable LIBO
Rate or Alternate Base Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.08. Default Interest. If a Borrower shall
default in the payment of the principal of or interest on any
Loan or any other amount becoming due hereunder, whether by
scheduled maturity, notice of prepayment, acceleration or
otherwise, such Borrower shall owe interest, payable on
demand, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment
(after as well as before judgment) at a rate per annum
(computed as provided in Section 2.07(b)) equal to the
Alternate Base Rate plus 2%.
SECTION 2.09. Alternate Rate of Interest. (a) In the
event, and on each occasion, that on the day two Business Days
prior to the commencement of any Interest Period for a
Eurodollar Borrowing the Administrative Agent shall have
determined (i) that dollar deposits in the principal amounts
of the Eurodollar Loans comprising such Borrowing are not
generally available in the London interbank market or (ii)
that reasonable means do not exist for ascertaining the LIBO
Rate, the Administrative Agent shall, as soon as practicable
thereafter, give telecopy notice of such determination to the
Borrowers and the Lenders. In the event of any such
determination under clauses (i) or (ii) above, until the
Administrative Agent shall have advised the Borrowers and the
Lenders that the circumstances giving rise to such notice no
longer exist, (x) any request by a Borrower for a Eurodollar
Competitive Borrowing pursuant to Section 2.03 shall be of no
force and effect and shall be denied by the Administrative
Agent and (y) any request by a Borrower for a Eurodollar
Standby Borrowing pursuant to Section 2.04 shall be deemed to
be a request for an ABR Borrowing.
(b) In the event a Lender notifies the Administrative
Agent that the rates at which dollar deposits are being
offered will not adequately and fairly reflect the cost to
such Lender of making or maintaining its Eurodollar Loan
during such Interest Period, the Administrative Agent shall
notify the applicable Borrower of such notice and until the
Lender shall have advised the Administrative Agent that the
circumstances giving rise to such notice no longer exist, any
request by such Borrower for a Eurodollar Standby Borrowing
shall be deemed a request for an ABR Borrowing for the same
Interest Period with respect to such Lender.
(c) Each determination by the Administrative Agent
hereunder shall be made in good faith and shall be conclusive
absent manifest error.
SECTION 2.10. Termination and Reduction of Commitments.
(a) The Commitments shall be automatically terminated on
the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable
telecopy notice to the Administrative Agent, the Company may
at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Total Commitment;
provided, however, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of
$1,000,000 and in a minimum principal amount of $5,000,000 and
(ii) no such termination or reduction shall be made which
would reduce the Total Commitment to an amount less than the
aggregate outstanding principal amount of the Competitive
Loans.
(c) Each reduction in the Total Commitment hereunder
shall be made ratably among the Lenders in accordance with
their respective Commitments. The Company shall pay to the
Administrative Agent for the account of the Lenders, on each
date of reduction of any portion of the Total Commitment, the
Facility Fees on the amount of the Commitments so terminated
accrued through the date of such termination or reduction.
SECTION 2.11. Prepayment. (a) Each Borrower shall have
the right at any time and from time to time to prepay any
Standby Borrowing, in whole or in part, upon giving telecopy
notice (or telephone notice promptly confirmed by telecopy) to
the Administrative Agent: (i) before 10:00 a.m., New York
City time, three Business Days prior to prepayment, in the
case of Eurodollar Loans, and (ii) before 10:00 a.m., New York
City time, one Business Day prior to prepayment, in the case
of ABR Loans; provided, however, that each partial prepayment
shall be in an amount which is an integral multiple of
$1,000,000 and not less than $5,000,000. No prepayment may be
made in respect of any Competitive Borrowing.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.10, the Borrowers shall pay
or prepay so much of the Standby Borrowings as shall be
necessary in order that the aggregate principal amount of the
Competitive Loans and Standby Loans outstanding will not
exceed the Total Commitment, after giving effect to such
termination or reduction.
(c) Each notice of prepayment shall specify the
prepayment date and the principal amount of each Borrowing (or
portion thereof) to be prepaid, shall be irrevocable and shall
commit the applicable Borrower to prepay such Borrowing (or
portion thereof) by the amount stated therein on the date
stated therein. All prepayments under this Section 2.11 shall
be subject to Section 2.14 but otherwise without premium or
penalty. All prepayments under this Section 2.11 shall be
accompanied by accrued interest on the principal amount being
prepaid to the date of payment.
SECTION 2.12. Reserve Requirements; Change in
Circumstances. (a) Notwithstanding any other provision
herein, if after the date of this Agreement any change in
applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or
not having the force of law) shall result in the imposition,
modification or applicability of any reserve, special deposit
or similar requirement against assets of, deposits with or for
the account of or credit extended by any Lender, or shall
result in the imposition on any Lender or the London interbank
market of any other condition affecting this Agreement, such
Lender's Commitment or any Eurodollar Loan or Fixed Rate Loan
made by such Lender, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan or Fixed Rate Loan or to
reduce the amount of any sum received or receivable by such
Lender with respect to any Eurodollar Loan or Fixed Rate Loan
hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender to be material, then such
additional amount or amounts as will compensate such Lender
for such additional costs or reduction will be paid by the
Borrowers to such Lender upon demand. Notwithstanding the
foregoing, no Lender shall be entitled to request compensation
under this paragraph with respect to any Competitive Loan if
the change giving rise to such request was applicable to such
Lender at the time of submission of the Competitive Bid
pursuant to which such Competitive Loan was made.
(b) If any Lender shall have determined that the
adoption after the date hereof of any law, rule, regulation or
guideline arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices
entitled "International Convergence of Capital Measurement and
Capital Standards," or the adoption after the date hereof of
any other law, rule, regulation or guideline regarding capital
adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by
any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by any Lender (or any lending office of such
Lender) with 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 such
Lender's capital as a consequence of this Agreement, such
Lender's Commitment or the Loans made by such Lender pursuant
hereto to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking
into consideration such Lender's policies with respect to
capital adequacy) by an amount deemed by such Lender to be
material, then from time to time such additional amount or
amounts as will compensate such Lender for such reduction will
be paid by the Borrowers to such Lender. It is acknowledged
that this Agreement is being entered into by the Lenders on
the understanding that the Lenders will not be required to
maintain capital against their Commitments under currently
applicable laws, regulations and regulatory guidelines. In
the event the Lenders shall be advised by any Governmental
Authority or shall otherwise determine on the basis of
pronouncements of any Governmental Authority that such
understanding is incorrect, it is agreed that the Lenders will
be entitled to make claims under this paragraph (b) based upon
market requirements prevailing on the date hereof for
commitments under comparable credit facilities against which
capital is required to be maintained.
(c) A certificate of each Lender setting forth such
amount or amounts as shall be necessary to compensate such
Lender as specified in paragraph (a) or (b) above, as the case
may be, shall be delivered to the Company promptly by such
Lender upon becoming aware of any costs pursuant to paragraphs
(a) or (b) above and shall be conclusive absent manifest
error. The Company shall pay each Lender the amount shown as
due on any such certificate delivered by it within 10 days
after its receipt of the same.
(d) Failure on the part of any Lender to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with
respect to any period shall not constitute a waiver of such
Lender's right to demand compensation with respect to such
period or any other period. The protection of this Section
shall be available to each Lender regardless of any possible
contention of the invalidity or inapplicability of the law,
rule, regulation, guideline or other change or condition which
shall have occurred or been imposed. No Lender shall be
entitled to compensation under this Section 2.12 for any costs
incurred or reduction suffered with respect to any date unless
such Lender shall have notified the Company that it will
demand compensation for such costs or reductions not more than
90 days after the later of (i) such date and (ii) the date on
which such Lender shall have become aware of such costs or
reductions. Notwithstanding any other provision of this
Section 2.12, no Lender shall demand compensation for any
increased cost or reduction referred to above if it shall not
at the time be the general policy or practice of such Lender
to demand such compensation in similar circumstances under
comparable provisions of other credit agreements, if any.
SECTION 2.13. Change in Legality. (a) Notwithstanding
any other provision herein, if any change in any law or
regulation or in the interpretation thereof by any
Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to
its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Company and to
the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be
made by such Lender hereunder, whereupon such Lender
shall not submit a Competitive Bid in response to a
request for Eurodollar Competitive Loans and any request
for a Eurodollar Standby Borrowing shall, as to such
Lender only, be deemed a request for an ABR Loan unless
such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made
by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR
Loans as of the effective date of such notice as provided
in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or
(ii) above, all payments and prepayments of principal which
would otherwise have been applied to repay the Eurodollar
Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be
applied to repay the ABR Loans made by such Lender in lieu of,
or resulting from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice by any
Lender shall be effective as to each Eurodollar Loan, if
lawful, on the last day of the Interest Period currently
applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt.
SECTION 2.14. Indemnity. The Borrowers shall indemnify
each Lender against any out-of-pocket loss or expense which
such Lender may sustain or incur as a consequence of (a) any
failure to borrow or to refinance any Loan hereunder after
irrevocable notice of such borrowing or refinancing has been
given pursuant to Section 2.03 or 2.04, (b) any payment,
prepayment or conversion, or assignment required under Section
2.18, of a Eurodollar Loan required by any other provision of
this Agreement (other than Section 2.13) or otherwise made or
deemed made on a date other than the last day of the Interest
Period, if any, applicable thereto, (c) any default in payment
or prepayment of the principal amount of any Loan or any part
thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, whether by scheduled
maturity, acceleration, irrevocable notice of prepayment or
otherwise) or (d) the occurrence of any Event of Default,
including, in each such case, any loss or reasonable expense
sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired
to effect or maintain such Loan or any part thereof as a
Eurodollar Loan or a Fixed Rate Loan. Such loss or reasonable
expense shall include an amount equal to the excess, if any,
as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid,
refinanced or not borrowed or so assigned (assumed to be the
LIBO Rate applicable thereto or, in the case of a Fixed Rate
Loan, the fixed rate of interest applicable thereto) for the
period from the date of such payment, prepayment, refinancing
or failure to borrow or refinance or such assignment, to the
last day of the Interest Period for such Loan (or, in the case
of a failure to borrow or refinance the Interest Period for
such Loan which would have commenced on the date of such
failure) over (ii) the amount of interest (as reasonably
determined by such Lender) that would be realized by such
Lender in reemploying in similar investments the funds so
paid, prepaid or not borrowed or refinanced or so assigned for
the remainder of such period or Interest Period, as the case
may be. A certificate of any Lender setting forth any amount
or amounts which such Lender is entitled to receive pursuant
to this Section 2.14 shall be delivered to the Borrowers and
shall be conclusive absent manifest error.
SECTION 2.15. Pro Rata Treatment. Except as required
under Section 2.12, each payment or prepayment of principal of
any Standby Borrowing, each payment of interest on the Standby
Loans, each payment of the Facility Fees, each reduction of
the Commitments and each refinancing of any Borrowing with a
Standby Borrowing of any Type, shall be allocated pro rata
among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or
been terminated, in accordance with the respective principal
amounts of their outstanding Standby Loans). Each payment of
principal of any Competitive Borrowing shall be allocated pro
rata among the Lenders participating in such Borrowing in
accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such
Borrowing in accordance with the respective amounts of accrued
and unpaid interest on their outstanding Competitive Loans
comprising such Borrowing. For purposes of determining the
available Commitments of the Lenders at any time, each
outstanding Competitive Borrowing shall be deemed to have
utilized the Commitments of the Lenders (including those
Lenders which shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such
respective Commitments. Each Lender agrees that in computing
such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or
lower whole dollar amount.
SECTION 2.16. Sharing of Setoffs. Each Lender agrees
that if it shall, through the exercise of a right of banker's
lien, setoff or counterclaim, or pursuant to a secured claim
under Section 506 of Title 11 of the United States Code or
other security or interest arising from, or in lieu of, such
secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or
by any other means, obtain payment (voluntary or involuntary)
in respect of any Standby Loan or Loans as a result of which
the unpaid principal portion of its Standby Loans shall be
proportionately less than the unpaid principal portion of the
Standby Loans of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at
face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Standby Loans of
such other Lender, so that the aggregate unpaid principal
amount of the Standby Loans and participations in the Standby
Loans held by each Lender shall be in the same proportion to
the aggregate unpaid principal amount of all Standby Loans
then outstanding as the principal amount of its Standby Loans
prior to such exercise of banker's lien, setoff or counter-
claim or other event was to the principal amount of all
Standby Loans outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided,
however, that, if any such purchase or purchases or adjust-
ments shall be made pursuant to this Section 2.16 and the
payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded
to the extent of such recovery and the purchase price or
prices or adjustment restored without interest. Any Lender
holding a participation in a Standby Loan deemed to have been
so purchased may exercise any and all rights of banker's lien,
setoff or counterclaim with respect to any and all moneys
owing to such Lender by reason thereof as fully as if such
Lender had made a Standby Loan in the amount of such
participation.
SECTION 2.17. Payments. (a) The Borrowers shall make
each payment (including principal of or interest on any
Borrowing and any Facility Fees or other amounts) hereunder
from an account in the United States not later than 12:00
noon, New York City time, on the date when due in dollars to
the Administrative Agent at its offices at 270 Park Avenue,
New York, New York, in immediately available funds.
(b) Whenever any payment (including principal of or
interest on any Borrowing or any Facility Fees or other
amounts) hereunder shall become due, or otherwise would occur,
on a day that is not a Business Day, such payment may be made
on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of
interest or Facility Fees, if applicable.
SECTION 2.18. Duty to Mitigate; Assignment of
Commitments Under Certain Circumstances. (a) Any Lender (or
Transferee) claiming any additional amounts payable pursuant
to Section 2.12 or Section 2.19 or exercising its rights under
Section 2.13 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or
document requested by the Company or to change the
jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter
accrue or avoid the circumstances giving rise to such exercise
and would not, in the sole determination of such Lender (or
Transferee), be otherwise disadvantageous to such Lender (or
Transferee).
(b) In the event that any Lender shall have delivered a
notice or certificate pursuant to Section 2.09(b), 2.12 or
2.13, or the Borrowers shall be required to make additional
payments to any Lender under Section 2.19, the Company shall
have the right, at its own expense (which shall include the
processing and recordation fee referred to in Section
9.04(b)), upon notice to such Lender and the Administrative
Agent, to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions
contained in Section 9.04) all interests, rights and
obligations contained hereunder to another financial
institution approved by the Administrative Agent (which
approval shall not be unreasonably withheld) which shall
assume such obligations; provided that (i) no such assignment
shall conflict with any law, rule or regulation or order of
any Governmental Authority and (ii) the assignee or the
Borrowers, as the case may be, shall pay to the affected
Lender in immediately available funds on the date of such
assignment the principal of and interest accrued to the date
of payment on the Loans made by it hereunder and all other
amounts accrued for its account or owed to it hereunder.
SECTION 2.19. Taxes. (a) Any and all payments to the
Lenders hereunder shall be made, in accordance with Section
2.17, free and clear of and without deduction for any and all
current or future taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto,
excluding (i) income taxes imposed on the net income of the
Administrative Agent or any Lender (or any transferee or
assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on
the net income of the Administrative Agent or any Lender (or
Transferee), in each case by the jurisdiction under the laws
of which the Administrative Agent or such Lender (or
Transferee) is organized or any political subdivision thereof
(all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or
individually, "Taxes"). If any Borrower shall be required to
deduct any Taxes from or in respect of any sum payable
hereunder to any Lender (or any Transferee) or the
Administrative Agent, (i) the sum payable shall be increased
by the amount (an "additional amount") necessary so that after
making all required deductions (including deductions
applicable to additional sums payable under this Section 2.19)
such Lender (or Transferee) or the Administrative Agent (as
the case may be) shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii)
such Borrower shall make such deductions and (iii) such
Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay to the relevant
Governmental Authority in accordance with applicable law any
current or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies that arise
from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to,
this Agreement ("Other Taxes").
(c) The Borrowers shall indemnify each Lender (or
Transferee) and the Administrative Agent for the full amount
of Taxes and Other Taxes paid by such Lender (or Transferee)
or the Administrative Agent, as the case may be, and any
liability (including penalties, interest and expenses
(including reasonable attorney's fees and expenses)) arising
therefrom or with respect thereto. A certificate as to the
amount of such payment or liability prepared by a Lender, or
the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive and binding for all purposes. Such
indemnification shall be made within 30 days after the date
the Lender (or Transferee) or the Administrative Agent, as the
case may be, makes written demand therefor.
(d) If a Lender (or Transferee) or the Administrative
Agent shall become aware that it is entitled to claim a refund
from a Governmental Authority in respect of Taxes or Other
Taxes as to which it has been indemnified by the Borrowers, or
with respect to which the Borrowers have paid additional
amounts, pursuant to this Section 2.19, it shall promptly
notify the Borrowers of the availability of such refund claim
and shall, within 30 days after receipt of a request by the
Borrowers, make a claim to such Governmental Authority for
such refund at the Borrowers' expense. If a Lender (or
Transferee) or the Administrative Agent receives a refund
(including pursuant to a claim for refund made pursuant to the
preceding sentence) in respect of any Taxes or Other Taxes as
to which it has been indemnified by the Borrowers or with
respect to which the Borrowers have paid additional amounts
pursuant to this Section 2.19, it shall within 30 days from
the date of such receipt pay over such refund to the Borrowers
(but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrowers under this Section
2.19 with respect to the Taxes or Other Taxes giving rise to
such refund), without interest (other than interest paid by
the relevant Governmental Authority with respect to such
refund); provided, however, that the Borrowers, upon the
request of such Lender (or Transferee) or the Administrative
Agent, agree to repay the amount paid over to the Borrowers
(plus penalties, interest or other charges) to such Lender (or
Transferee) or the Administrative Agent in the event such
Lender (or Transferee) or the Administrative Agent is required
to repay such refund to such Governmental Authority.
(e) As soon as practicable after the date of any payment
of Taxes or Other Taxes by the Borrowers to the relevant
Governmental Authority, the Borrowers will deliver to the
Administrative Agent, at its address referred to in Section
9.01, the original or a certified copy of a receipt issued by
such Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other
agreement contained herein, the agreements and obligations
contained in this Section 2.19 shall survive the payment in
full of the principal of and interest on all Loans made
hereunder for a period of 3 years.
(g) Each Lender (or Transferee) that is organized under
the laws of a jurisdiction other than the United States, any
State thereof or the District of Columbia (a "Non-U.S.
Lender") shall deliver to the Company and the Administrative
Agent two copies of either United States Internal Revenue
Service Form 1001 or Form 4224, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. Federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if
such Non-U.S. Lender delivers a Form W-8, a certificate
representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the
Code) of the Company and is not a controlled foreign
corporation related to the Company (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on
payments by the Company under this Agreement. Such forms
shall be delivered by each Non-U.S. Lender on or before the
date it becomes a party to this Agreement (or, in the case of
a Transferee that is a participation holder, on or before the
date such participation holder becomes a Transferee hereunder)
and on or before the date, if any, such Non-U.S. Lender
changes its applicable lending office by designating a
different lending office (a "New Lending Office"). In
addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender. Notwithstanding
any other provision of this Section 2.19(g), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this
Section 2.19(g) that such Non-U.S. Lender is not legally able
to deliver.
(h) The Borrowers shall not be required to indemnify any
Non-U.S. Lender, or to pay any additional amounts to any Non-U.S.
Lender, in respect of United States Federal withholding
tax pursuant to paragraph (a) or (c) above to the extent that
(i) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement (or, in the case
of a Transferee that is a participation holder, on the date
such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date
such Non-U.S. Lender designated such New Lending Office with
respect to a Loan; provided, however, that this clause (i)
shall not apply to any Transferee or New Lending Office that
becomes a Transferee or New Lending Office as a result of an
assignment, participation, transfer or designation made at the
request of the Company; and provided further, however, that
this clause (i) shall not apply to the extent the indemnity
payment or additional amounts any Transferee, or Lender (or
Transferee) through a New Lending Office, would be entitled to
receive (without regard to this clause (i)) do not exceed the
indemnity payment or additional amounts that the person making
the assignment, participation or transfer to such Transferee,
or Lender (or Transferee) making the designation of such New
Lending Office, would have been entitled to receive in the
absence of such assignment, participation, transfer or
designation or (ii) the obligation to pay such additional
amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of paragraph (g)
above.
(i) Any Lender (or Transferee) claiming any indemnity
payment or additional amounts payable pursuant to this Section
2.19 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document
reasonably requested in writing by the Company or to change
the jurisdiction of its applicable lending office if the
making of such a filing or change would avoid the need for or
reduce the amount of any such indemnity payment or additional
amounts that may thereafter accrue and would not, in the sole
determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee).
(j) Nothing contained in this Section 2.19 shall require
any Lender (or Transferee) or the Administrative Agent to make
available any of its tax returns (or any other information
that it deems to be confidential or proprietary).
ARTICLE III
Representations and Warranties
The Company represents and warrants to each of the
Lenders that:
SECTION 3.01. Corporate Existence and Power. The
Company and each Borrowing Subsidiary is a corporation duly
incorporated, validly existing and in good standing under the
laws of the jurisdiction of its 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 3.02. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the
Company of this Agreement (a) is within the Company's
corporate powers, (b) has been duly authorized by all
necessary corporate action, (c) requires no action by or in
respect of, or filing with, any Governmental Authority and (d)
does not (i) contravene, or constitute a default under, any
applicable provision of law or regulation either of the United
States or a particular state thereof or of the certificate of
incorporation or by-laws of the Company or of any agreement,
judgment, injunction, order, decree or other instrument
binding upon the Company or (ii) result in the creation or
imposition of any Lien on any asset of the Company or any of
its Subsidiaries.
SECTION 3.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of the rights of its
creditors generally and subject to general legal and equitable
principles with respect to the availability of particular
remedies.
SECTION 3.04. Financial Information. (a) The
consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of January 3, 1993 and the related
consolidated statements of earnings and changes in financial
position for the fiscal year then ended, reported on by Arthur
Andersen & Co. and set forth in the Company's annual report on
Form 10-K for the fiscal year ended January 3, 1993, a copy of
which has been delivered to each of the Lenders, fairly
present, in conformity with GAAP, the consolidated financial
position of the Company and its Consolidated Subsidiaries as
of such date and their consolidated results of operations and
changes in financial position for such fiscal year.
(b) The unaudited consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of October 3,
1993 and the related unaudited consolidated statements of
earnings and changes in financial position for the nine months
then ended, set forth in the Company's quarterly report on
Form 10-Q for the fiscal quarter ended October 3, 1993, a copy
of which has been delivered to each of the Lenders, fairly
present, in conformity with GAAP applied on a basis consistent
with the financial statements referred to in paragraph (a) of
this Section 3.04, the consolidated financial position of the
Company and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and changes in
financial position for such nine month period (subject to
normal year-end adjustments).
SECTION 3.05. Litigation. 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 possibility of a final adverse decision which could
materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Company and its Consolidated Subsidiaries taken as a whole
or which in any manner draws into question the validity of
this Agreement.
SECTION 3.06. Compliance with ERISA. The Company and
each ERISA Affiliate has fulfilled its obligations under the
minimum funding standards of ERISA and the Code with respect
to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code
relating to the Plans, and has not incurred any liability to
the PBGC or a Plan under Title IV of ERISA.
SECTION 3.07. Taxes. United States Federal income tax
returns of the Company and its Subsidiaries have been examined
and closed through the fiscal year ended January 3, 1988. 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
material taxes due pursuant to such returns or pursuant to any
assessment received by the Company or any Subsidiary which the
Company or any Subsidiary is not disputing in a good faith
manner. 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 3.08. Subsidiaries. Attached hereto as Schedule
3.08 is a schedule which correctly identifies all
Subsidiaries as of the date of this Agreement. Except as
noted on Schedule 3.08, all of the issued and outstanding
shares of the capital stock of each Subsidiary is duly issued
and outstanding, fully paid and non-assessable and except for
directors' qualifying shares and shares issued solely for the
purpose of satisfying local requirements concerning the
minimum number of shareholders is owned by the Company or a
Subsidiary free and clear of any mortgage, pledge, lien or
encumbrance.
SECTION 3.09. Representations and Warranties of Each
Borrowing Subsidiary. Each Borrowing Subsidiary shall be
deemed by the execution and delivery of a Borrowing Subsidiary
Agreement to have represented and warranted as of the date
thereof as follows:
(a) It is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to do business and in good
standing in each other jurisdiction in which it owns property
and/or conducts its business and in which failure to be so
qualified and in good standing would have a materially adverse
effect on the business of such Borrowing Subsidiary.
(b) The execution, delivery and performance by it of its
Borrowing Subsidiary Agreement, and the performance by it of
the provisions of this Agreement applicable to it, are within
its corporate powers, have been duly authorized by all
necessary corporate action and do not contravene (i) its
charter or by-laws (or the equivalent thereof) or (ii) any law
or regulation or any agreement, judgment, injunction, order,
decree or other instrument binding on or affecting it.
(c) No authorization or approval or other action by, and
no notice to or filing with, any Governmental Authority is
required for the due execution, delivery and performance by it
of its Borrowing Subsidiary Agreement or for the performance
by it of the provisions of this Agreement applicable to it,
except for those which have been duly obtained or made and are
in full force and effect.
(d) It is not in breach of or default under any
agreement to which it is a party or which is binding on it or
any of its assets to an extent or in a manner which would have
a material adverse effect on its ability to perform its
obligations hereunder after taking into consideration its
other financial obligations.
(e) This Agreement is a legal, valid and binding
obligation of such Borrowing Subsidiary enforceable against it
in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of the rights of its creditors
generally and subject to general legal and equitable
principles with respect to the availability of particular
remedies.
(f) The proceeds of each Loan made to it will be used
solely for general corporate purposes, including the
acquisition of new businesses.
SECTION 3.10. Federal Reserve Regulations. (a) Neither
any Borrower nor any Subsidiary is engaged principally, or as
a substantial part of its activities, in the business of
extending credit for the purpose of purchasing or carrying
Margin Stock (within the meaning of Regulation U).
(b) No part of the proceeds of any Loan has been or will
be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, in any manner or for
any purpose that has resulted or will result in a violation of
Regulation U.
SECTION 3.11. Investment Company Act; Public Utility
Holding Company Act. Neither any Borrower nor any Subsidiary
is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.12. Environmental and Safety Matters. (a)
With respect to all facilities owned and operated by the
Company and its Subsidiaries, or at which the Company or any
of its Subsidiaries has a leasehold interest, other than any
facilities referred to in (b) below, except as set forth in
Schedule 3.12(a) (i) the Company and each Subsidiary is in
compliance in all material respects with all Federal, state,
local and other statutes, ordinances, orders, judgments,
rulings and regulations relating to environmental pollution or
to environmental regulation or control or to employee health
or safety (collectively "Environmental Laws") except where the
failure to be in compliance so would not be reasonably likely,
individually or in the aggregate, to result in a Material
Adverse Effect; (ii) neither the Company nor any Subsidiary
has received notice of any material failure so to comply,
which non-compliance neither has been remedied nor is the
subject of the Company's good faith efforts to achieve
compliance, except where the failure to be in compliance would
not be reasonably likely, individually or in the aggregate, to
result in a Material Adverse Effect and (iii) the Company is
aware of no events, conditions or circumstances involving
environmental pollution or contamination or employee health or
safety that in its judgment would be reasonably likely to
result in a Material Adverse Effect.
(b) With respect to the Federally owned or operated
facilities listed on Schedule 3.12(b) at which the Company
and/or its Subsidiaries are the management and operations
contractor or such facilities at which the Company and/or its
Subsidiaries may act as such after the date of this Agreement,
except as set forth in Schedule 3.12(c) neither the Company
nor any of its Subsidiaries has received notice of any claim
under any Environmental Laws which in its judgment would be
reasonably likely to result in a Material Adverse Effect.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans hereunder
are subject to the satisfaction of the following conditions:
SECTION 4.01. All Borrowings. On the date of each
Borrowing:
(a) The Administrative Agent shall have received a
notice of such Borrowing as required by Section 2.03 or
Section 2.04, as applicable.
(b) The representations and warranties set forth in
Article III (except in the case of a refinancing that does not
increase the aggregate principal amount of Loans of any Lender
outstanding, the representations set forth in Section 3.05 and
3.12) hereof shall be true and correct in all material
respects on and as of the date of such Borrowing with the same
effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to
an earlier date.
(c) At the time of and immediately after such Borrowing
no Event of Default or Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation
and warranty by the applicable Borrower on the date of such
Borrowing as to the matters specified in paragraphs (b) and
(c) of this Section 4.01.
SECTION 4.02. Closing Date. On the Closing Date:
(a) The Administrative Agent shall have received the
favorable written opinion of Murray Gross, Esq., dated the
Closing Date and addressed to the Lenders and satisfactory to
Cravath, Swaine & Moore, counsel for the Administrative Agent,
to the effect set forth in Exhibit D-1 hereto.
(b) The Administrative Agent shall have received (i) a
copy of the certificate of incorporation, including all
amendments thereto, of the Company, certified as of a recent
date by the Secretary of State of its state of incorporation,
and a certificate as to the good standing of the Company as of
a recent date from such Secretary of State; (ii) a certificate
of the Clerk or an Assistant Clerk of the Company dated the
Closing Date and certifying (A) that attached thereto is a
true and complete copy of the by-laws of the Company as in
effect on the Closing Date and at all times since a date prior
to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of the
Company authorizing the execution, delivery and performance of
this Agreement and the Borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and
are in full force and effect, (C) that the certificate of
incorporation referred to in clause (i) above has not been
amended since the date of the last amendment thereto shown on
the certificate of good standing furnished pursuant to such
clause (i) and (D) as to the incumbency and specimen signature
of each officer executing this Agreement or any other document
delivered in connection herewith on behalf of the Company; and
(iii) a certificate of another officer of the Company as to
the incumbency and specimen signature of the Clerk or
Assistant Clerk executing the certificate pursuant to (ii)
above.
(c) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial
Officer of the Company, confirming compliance with the
conditions precedent set forth in paragraphs (b) and (c) of
Section 4.01.
(d) The Administrative Agent shall have received
evidence of the termination of the Existing Facilities.
SECTION 4.03. First Borrowing by Each Borrowing
Subsidiary. On the first date on which Loans are made to each
Borrowing Subsidiary:
(a) The Administrative Agent shall have received the
favorable written opinion of Murray Gross, Esq., dated the
date of such Loans, addressed to the Lenders and satisfactory
to Cravath, Swaine & Moore, counsel for the Administrative
Agent, to the effect set forth in Exhibit D-2 hereto.
(b) Each Lender shall have received a copy of the
Borrowing Subsidiary Agreement executed by such Borrowing
Subsidiary.
(c) Such Loans shall not violate any law, rule or
regulation binding on any of the Lenders.
(d) Each Lender shall have received from the Company an
unaudited consolidated balance sheet and related consolidated
statements of earnings and changes in financial position for
the fiscal year most recently ended of such Borrowing
Subsidiary.
ARTICLE V
Covenants
The Company covenants and agrees with each Lender and the
Administrative Agent that so long as this Agreement shall
remain in effect or the principal of or interest on any Loan,
any Facility Fees or any other amounts payable hereunder shall
be unpaid, unless the Required Lenders shall otherwise consent
in writing:
SECTION 5.01. Information. The Company will deliver to
each of the Lenders:
(a) as soon as available and in any event within 90 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 earnings and cash flows for such
fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on by
Arthur Andersen & Co. or other independent public accountants
of nationally recognized standing acceptable to the Required
Lenders and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the
effect that such consolidated financial statements fairly
present the financial condition and results of operations of
the Company and the Consolidated Subsidiaries in accordance
with GAAP;
(b) as soon as available and in any event within 45 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
earnings and cash flows for such quarter and for the portion
of the Company's fiscal year ended at the end of such quarter,
setting forth in each case in comparative form the figures for
the corresponding quarter and the corresponding portion of the
Company's previous fiscal year, all certified (subject to
normal year-end adjustments) as to fairness of presentation,
compliance with GAAP and consistency by a Financial 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 a Financial 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 5.06 and 5.07 on the date of such
financial statements and (ii) stating whether there exists on
the date of such certificate any Default 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) forthwith upon the occurrence of any Default, a
certificate of the chief financial officer or the 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;
(e) promptly upon the mailing thereof to the
shareholders of the Company generally, copies of all financial
statements, reports and proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all
annual or quarterly reports and upon request by any Lender
copies of all registration statements (other than the exhibits
thereto and any registration statements on Form S-8 or its
equivalent) which the Company shall have filed with the
Securities and Exchange Commission;
(g) (i) as soon as possible after, and in any event
within 30 days after the Company or any ERISA Affiliate knows
or has reason to know that, any Reportable Event has occurred
that alone or together with any other Reportable Event could
reasonably be expected to result in liability of the Company
to the PBGC in an aggregate amount exceeding $5,000,000, a
statement of a Financial Officer setting forth details as to
such Reportable Event and the action that the Company proposes
to take with respect thereto, together with a copy of the
notice, if any, of such Reportable Event given to the PBGC,
(ii) promptly after receipt thereof, a copy of any notice that
the Company or any ERISA Affiliate may receive from the PBGC
relating to the intention of the PBGC to terminate any Plan or
Plans (other than a Plan maintained by an ERISA Affiliate that
is considered an ERISA Affiliate only pursuant to subsection
(m) or (o) of Code Section 414) or to appoint a trustee to
administer any such Plan, (iii) within 10 days after the due
date for filing with the PBGC pursuant to Section 412(n) of
the Code a notice of failure to make a required installment or
other payment with respect to a Plan, a statement of a
Financial Officer setting forth details as to such failure and
the action that the Company proposes to take with respect
thereto, together with a copy of any such notice given to the
PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Company or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, a copy of each notice
received by the Company or any ERISA Affiliate concerning (A)
the imposition of Withdrawal Liability or (B) a determination
that a Multiemployer Plan is, or is expected to be, terminated
or in reorganization, both within the meaning of Title IV of
ERISA; and
(h) from time to time such additional information
regarding the financial position or business of the Company as
any Lender may reasonably request.
SECTION 5.02. Corporate Existence; Businesses and
Properties. (a) The Company will, and will cause each
Borrowing Subsidiary to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect
its corporate existence.
(b) Except to the extent that failure to do so would not
have a Material Adverse Effect, the Company will, and will
cause each Borrowing Subsidiary to, (i) do or cause to be done
all things necessary to preserve, renew and keep in full force
and effect all rights, licenses, permits and franchises
material to the conduct of the business of the Company and the
Subsidiaries, taken as a whole, (ii) comply with all laws and
regulations applicable to it and (iii) conduct its business in
substantially the same manner as heretofore conducted or as at
the time permitted under applicable law.
SECTION 5.03. Insurance. The Company will, and will
cause each Subsidiary to, keep its insurable properties
adequately insured at all times by financially sound and
reputable insurers, and maintain such other insurance, to such
extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with
companies similarly situated and in the same or similar
businesses.
SECTION 5.04. Litigation and Other Notices. The Company
will give each Lender prompt written notice of the following:
(a) the filing or commencement of, or any written threat
or written notice of intention of any person to file or
commence, any action, suit or proceeding which could
reasonably be expected to result in a Material Adverse Effect;
and
(b) any development in the business or affairs of the
Company or any Subsidiary that has resulted in a Material
Adverse Effect.
SECTION 5.05. Maintaining Records; Access to Properties
and Inspections. The Company will, and will cause each
Subsidiary to, maintain financial records in accordance with
GAAP and, upon reasonable notice, at all reasonable times,
permit (a) any authorized representative designated by any
Lender to discuss the affairs, finances and condition of the
Company and the Subsidiaries with a Financial Officer of the
Company and such other officers as the Company shall deem
appropriate and (b) any authorized representative designated
by the Administrative Agent or the Required Lenders to visit
and inspect the properties of the Company and of any
Subsidiary.
SECTION 5.06. Fixed Charge Coverage. The Company will
not permit the ratio of (a) Consolidated EBIT to (b)
Consolidated Net Interest Expense for any period of four
consecutive fiscal quarters ending on the last day of any
fiscal quarter to be less than 5:1.
SECTION 5.07. Net Debt to Capitalization Ratio. The
Company will not permit on any date the ratio of (a)
Consolidated Net Indebtedness on such date to (b) the sum of
(i) Shareholders' Equity on such date and (ii) Consolidated
Net Indebtedness on such date to be greater than 0.35:1.00.
SECTION 5.08. Negative Pledge. Neither the Company nor
any Consolidated Subsidiary will create, assume or suffer to
exist any Lien securing Indebtedness on any asset now owned or
hereafter acquired by it, except:
(a) Liens on all or part of the assets of Consolidated
Subsidiaries securing Indebtedness owing by Consolidated
Subsidiaries to the Company and Consolidated Subsidiaries;
(b) mortgages on real property or security interests in
personal property securing Indebtedness of the Company and
Consolidated Subsidiaries in an aggregate amount not exceeding
ten percent (10%) of the consolidated total assets of the
Company and the Consolidated Subsidiaries;
(c) Liens to secure taxes, assessments and other
governmental charges or claims for labor, material or supplies
to the extent that payment thereof shall not at the time be
required to be made in accordance with Section 3.07 hereof;
(d) deposits or pledges made in connection with, or to
secure payment of, workmen's compensation, unemployment
insurance, old age, pension or other social security
obligations;
(e) Liens in respect of judgments or awards not
exceeding $1,000,000 in the aggregate at any time, and any
other Liens with respect to which the execution or enforcement
thereof is being effectively stayed and the claims secured
thereby are being contested in good faith by appropriate
proceedings;
(f) Liens of carriers, warehousemen, mechanics and
materialmen, and other like Liens, in existence less than 120
days from the date of creation thereof;
(g) encumbrances consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property
and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the Company
or a Consolidated Subsidiary is a party, and other similar
encumbrances none of which in the opinion of the Company
interferes materially with the use of the property in the
ordinary conduct of the business of the Company and the
Consolidated Subsidiaries; and similar encumbrances on
interests in real estate located outside the United States,
which defects do not individually or in the aggregate have a
material adverse effect on the business of the Company
individually or of the Company and the Consolidated
Subsidiaries on a consolidated basis; and
(h) notwithstanding the provisions of subsection (b)
hereof, security interests in Margin Stock if, and to the
extent that, the value of all such Margin Stock owned by the
Company and its Consolidated Subsidiaries exceeds 25% of the
value of the total assets of the Company and its Consolidated
Subsidiaries subject to this Section 5.08.
SECTION 5.09. Consolidations, Mergers and Sales of
Assets. (a) The Company will not (i) consolidate or merge
with or into any other person unless (A) the Company shall be
the surviving entity and (B) immediately thereafter no Default
or Event of Default shall have occurred and be continuing or
(ii) sell, lease or otherwise transfer all or any substantial
part of its assets to any other person. The Company will not
sell, lease or otherwise transfer any of its assets to any
other person except for full and adequate consideration.
(b) No Borrowing Subsidiary will (i) consolidate or
merge with or into any other person unless (A) if the
surviving entity shall be other than such Borrowing
Subsidiary, (x) such surviving entity or the Company shall
have assumed in writing all obligations of such Borrowing
Subsidiary relating to this Agreement and (y) such surviving
entity shall be 100% owned by the Company and (B) no Default
or Event of Default shall have occurred and be continuing
either before or immediately after such consolidation or
merger or (ii) sell, lease or otherwise transfer all or any
substantial part of its assets to any other person. No
Borrowing Subsidiary will sell, lease or otherwise transfer
any of its assets to any other person except for full and
adequate consideration.
ARTICLE VI
Events of Default
In case of the happening of any of the following events
(each an "Event of Default"):
(a) any representation or warranty made or deemed made in
or in connection with the execution and delivery of this
Agreement or the Borrowings hereunder or any representation,
warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished
in connection with this Agreement shall prove to have been
incorrect in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal
of any Loan when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for
prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest
on any Loan or any Facility Fee or any other amount (other
than an amount referred to in paragraph (b) above) due
hereunder, when and as the same shall become due and payable,
and such default shall continue unremedied for a period of
three Business Days;
(d) default shall be made in the due observance or
performance of any covenant, condition or agreement contained
in Sections 5.02 or 5.06 through 5.09;
(e) default shall be made in the due observance or
performance of any covenant, condition or agreement contained
herein (other than those specified in paragraphs (b), (c) or
(d) above) and such default shall continue unremedied for a
period of 10 days after notice thereof from the Administrative
Agent or any Lender to the Company;
(f) the Company or any Subsidiary shall (i) fail to pay
any principal or interest, regardless of amount, due in
respect of any Indebtedness in an aggregate principal amount
in excess of $15,000,000, when and as the same shall become
due and payable, or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this
clause (ii) is to cause, or to permit the holder or holders of
such Indebtedness or a trustee on its or their behalf (with or
without the giving of notice, the lapse of time or both) to
cause, such Indebtedness to become due prior to its stated
maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Company or
any Subsidiary, or of a substantial part of the property or
assets of the Company or a Subsidiary, under Title 11 of the
United States Code, as now constituted or hereafter amended,
or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Subsidiary or for a
substantial part of the property or assets of the Company or
a Subsidiary or (iii) the winding up or liquidation of the
Company or any Subsidiary; and such proceeding or petition
shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(h) the Company or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or the filing of any
petition described in paragraph (g) above, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company
or any Subsidiary or for a substantial part of the property or
assets of the Company or any Subsidiary, (iv) file an answer
admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in writing
its inability or fail generally to pay its debts as they
become due or (vii) take any action for the purpose of
effecting any of the foregoing;
(i) one or more final and nonappealable judgments for the
payment of money in an aggregate amount in excess of
$5,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon
assets or properties of the Company or any Subsidiary to
enforce any such final and nonappealable judgment or judgments
aggregating in excess of $5,000,000;
(j) a Reportable Event or Reportable Events, or a failure
to make a required installment or other payment (within the
meaning of Section 412(n)(l) of the Code), shall have occurred
with respect to any Plan or Plans that reasonably could be
expected to result in liability of the Company to the PBGC or
to a Plan in an aggregate amount exceeding $5,000,000 and,
within 30 days after the reporting of any such Reportable
Event to the Administrative Agent, the Administrative Agent
shall have notified the Company in writing that (i) the
Required Lenders have made a determination that, on the basis
of such Reportable Event or Reportable Events or the failure
to make a required payment, there are reasonable grounds (A)
for the termination of such Plan or Plans by the PBGC, (B) for
the appointment by the appropriate United States District
Court of a trustee to administer such Plan or Plans or (C) for
the imposition of a lien in favor of a Plan and (ii) as a
result thereof an Event of Default exists hereunder; or a
trustee shall be appointed by a United States District Court
to administer any such Plan or Plans; or the PBGC shall
institute proceedings to terminate any Plan or Plans;
(k) (i) the Company or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it
has incurred Withdrawal Liability to such Multiemployer Plan,
(ii) the Borrower or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal Liability or
is not in fact contesting such Withdrawal Liability in a
timely and appropriate manner and (iii) the amount of the
Withdrawal Liability specified in such notice, when aggregated
with all other amounts required to be paid to Multiemployer
Plans in connection with Withdrawal Liabilities (determined as
of the date or dates of such notification), exceeds $5,000,000
or requires payments exceeding $1,000,000 in any year;
(1) the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if solely
as a result of such reorganization or termination the
aggregate annual contributions of the Company and its ERISA
Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been
or will be increased over the amounts required to be
contributed to such Multiemployer Plans for their most
recently completed plan years by an amount exceeding
$1,000,000; or
(m) a Change in Control shall occur; then, and in every
such event (other than an event with respect to the Company
described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the
Administrative Agent, at the request of the Required Lenders,
shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i)
terminate forthwith the Commitments and (ii) declare the Loans
then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and
any unpaid accrued Facility Fees and all other liabilities of
the Borrowers accrued hereunder, shall become forthwith due
and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived
anything contained herein to the contrary notwithstanding;
and, in any event with respect to the Company described in
paragraph (g) or (h) above, the Commitments shall
automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any
unpaid accrued Facility Fees and all other liabilities of the
Borrowers accrued hereunder shall automatically become due and
payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived
anything contained herein to the contrary notwithstanding.
ARTICLE VII
Guarantee
The Company unconditionally and irrevocably guarantees
the due and punctual payment and performance, when and as due,
whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, of the Guaranteed
Obligations. The Company further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part,
without notice or further assent from it and that it will
remain bound upon its guarantee notwithstanding any extension
or renewal of any Guaranteed Obligations.
The Company waives presentment to, demand of payment from
and protest to the Borrowing Subsidiaries of any of the
Guaranteed Obligations, and also waives notice of acceptance
of its guarantee and notice of protest for nonpayment. The
obligations of the Company hereunder shall not be affected by
(a) the failure of any Lender or the Administrative Agent to
assert any claim or demand or to enforce any right or remedy
against the Borrowing Subsidiaries under the provisions of
this Agreement or otherwise; (b) any rescission, waiver,
amendment or modification of any of the terms or provisions of
this Agreement, any guarantee or any other agreement; or (c)
the failure of any Lender or the Administrative Agent to
exercise any right or remedy against any other guarantor of
the Guaranteed Obligations.
The Company 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 Lender to any security, if any,
held for payment of the Guaranteed Obligations or to any
balance of any deposit account or credit on its books, in
favor of the Borrowing Subsidiaries or any other person.
The obligations of the Company hereunder shall not be
subject to any reduction, limitation, impairment or
termination for any reason, including, without limitation, any
claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the Company
hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Administrative Agent or any
Lender to assert any claim or demand or to enforce any remedy
under this Agreement, any guarantee or any other agreement, by
any waiver or modification of any provision of any thereof, by
any default, failure or delay, wilful or otherwise, in the
performance of the Guaranteed Obligations, or by any other act
or omission which may or might in any manner or to any extent
vary the risk of the Company or otherwise operate as a
discharge of the Company as a matter of law or equity.
To the extent permitted by applicable law, the Company
waives any defense based on or arising out of any defense
available to the Borrowing Subsidiaries, including any defense
based on or arising out of any disability of the Borrowing
Subsidiaries, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrowing
Subsidiaries, other than final payment in full of the
Guaranteed Obligations. The Administrative Agent and the
Lenders may, at their election, foreclose on any security held
by one or more of them by one or more judicial or non-judicial
sales, or exercise any other right or remedy available to them
against the Borrowing Subsidiaries, or any security without
affecting or impairing in any way the liability of the Company
hereunder except to the extent the Guaranteed Obligations have
been fully and finally paid. The Company waives any defense
arising out of any such election even though such election
operates to impair or to extinguish any right of reimbursement
or subrogation or other right or remedy of the Company against
any Borrowing Subsidiary or any security.
The Company further agrees that its guarantee shall
continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of principal of
or interest on any Guaranteed Obligation is rescinded or must
otherwise be restored by any Lender upon the bankruptcy or
reorganization of any Borrowing Subsidiary or otherwise.
In furtherance of the foregoing and not in limitation of
any other right which the Administrative Agent or any Lender
may have at law or in equity against the Company by virtue
hereof, upon the failure of any Borrowing Subsidiary to pay
any Guaranteed Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Company hereby promises to and
will, upon receipt of written demand by the Administrative
Agent or any Lender, forthwith pay or cause to be paid to the
Administrative Agent or such Lender in cash the amount of such
unpaid Guaranteed Obligation.
Upon payment by the Company of any sums to the
Administrative Agent or any Lender, as provided above, all
rights of the Company against the other Borrowers arising as
a result thereof by way of right of subrogation or otherwise
shall in all respects be subordinated and junior in right of
payment to the prior indefeasible payment in full of all the
Guaranteed Obligations to the Administrative Agent and the
Lenders; provided, however, that to the extent any right of
subrogation that the Company might have pursuant to this
Agreement or otherwise would constitute the Company a
"creditor" of any Borrower within the meaning of Section 547
of Title 11 of the United States Code as now in effect or
hereafter amended, or any comparable provision of any
successor statute, the Company hereby irrevocably waives and
releases such right of subrogation.
ARTICLE VIII
The Administrative Agent
In order to expedite the transactions contemplated by
this Agreement, Chemical Bank is hereby appointed to act as
Administrative Agent on behalf of the Lenders. Each of the
Lenders hereby irrevocably authorizes the Administrative Agent
to take such actions on behalf of such Lender or holder and to
exercise such powers as are specifically delegated to the
Administrative Agent by the terms and provisions hereof,
together with such actions and powers as are reasonably
incidental thereto. The Administrative Agent is hereby
expressly authorized by the Lenders, without hereby limiting
any implied authority, (a) to receive on behalf of the Lenders
all payments of principal of and interest on the Loans and all
other amounts due to the Lenders hereunder, and promptly to
distribute to each Lender its proper share of each payment so
received; (b) to give notice on behalf of each of the Lenders
to the Borrowers of any Event of Default of which the
Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute
promptly to each Lender copies of all notices, financial
statements and other materials delivered by the Borrowers
pursuant to this Agreement as received by the Administrative
Agent.
Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall be liable as
such for any action taken or omitted by any of them except for
its or his or her own gross negligence or willful misconduct,
or be responsible for any statement, warranty or
representation herein or the contents of any document
delivered in connection herewith, or be required to ascertain
or to make any inquiry concerning the performance or
observance by the Borrowers of any of the terms, conditions,
covenants or agreements contained in this Agreement. The
Administrative Agent shall not be responsible to the Lenders
for the due execution, genuineness, validity, enforceability
or effectiveness of this Agreement or other instruments or
agreements. The Administrative Agent may deem and treat the
Lender that makes any Loan as the holder of the indebtedness
resulting therefrom for all purposes hereof until it shall
have received notice from such Lender, given as provided
herein, of the transfer thereof. The Administrative Agent
shall in all cases be fully protected in acting, or refraining
from acting, in accordance with written instructions signed by
the Required Lenders and, except as otherwise specifically
provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The
Administrative Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document
believed by it in good faith to be genuine and correct and to
have been signed or sent by the proper person or persons.
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall have any responsibility to
the Borrowers on account of the failure of or delay in
performance or breach by any other Lender of any of its
obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other
Lender or the Borrowers of any of their respective obligations
hereunder or in connection herewith. The Administrative Agent
may execute any and all duties hereunder by or through agents
or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken
or suffered in good faith by it in accordance with the advice
of such counsel.
The Lenders hereby acknowledge that the Administrative
Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this
Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative
Agent may resign at any time by notifying the Lenders and the
Company. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative
Agent reasonably acceptable to the Company. If no successor
shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation,
then, the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall
be a bank with an office in New York, New York, having a
combined capital and surplus of at least $500,000,000 or an
Affiliate of any such bank. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
bank, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder.
After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.05 shall continue in
effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as
Administrative Agent.
With respect to the Loans made by it hereunder, the
Administrative Agent in its individual capacity and not as
Administrative Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were
not the Administrative Agent, and the Administrative Agent and
its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrowers or
any Subsidiary or other Affiliate thereof as if it were not
the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative
Agent, on demand, in the amount of its pro rata share (based
on its Commitment hereunder or, if the Commitments shall have
been terminated, the amount of its outstanding Loans) of any
out-of-pocket expenses incurred for the benefit of the Lenders
by the Administrative Agent, including reasonable counsel fees
and compensation of agents paid for services rendered on
behalf of the Lenders, which shall not have been reimbursed by
the Borrowers and (ii) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such pro rata
share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted
against it in its capacity as the Administrative Agent in any
way relating to or arising out of this Agreement or any action
taken or omitted by it under this Agreement to the extent the
same shall not have been reimbursed by the Borrowers; provided
that no Lender shall be liable to the Administrative Agent for
any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent or any of its
directors, officers, employees or agents. Each Lender agrees
that any allocation made in good faith by the Administrative
Agent of expenses or other amounts referred to in this
paragraph between this Agreement and the Facility A Credit
Agreement shall be conclusive and binding for all purposes.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such
documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement or any
related agreement or any document furnished hereunder or
thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except as otherwise expressly
provided herein, notices and other communications provided for
herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed or sent by telecopy, as
follows:
(a) if to any Borrower, to EG&G, Inc., 45 William Street,
Wellesley, Massachusetts 02181, Attention of Treasurer,
(Telecopy No. 617-431-4279);
(b) if to the Administrative Agent, to it at 270 Park
Avenue, New York, New York 10017, Attention of Ted Swimmer,
(Telecopy No. 212-270-2625); and
(c) if to a Lender, to it at its address (or telecopy
number) set forth in Schedule 2.01 or in the Assignment and
Acceptance pursuant to which such Lender became a party
hereto.
All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt if delivered
by hand or overnight courier service or sent by telecopy to
such party as provided in this Section 9.01 or in accordance
with the latest unrevoked direction from such party given in
accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants,
agreements, representations and warranties made by the
Borrowers herein and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this
Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the
Loans regardless of any investigation made by the Lenders or
on their behalf, and shall continue in full force and effect
as long as the principal of or any accrued interest on any
Loan or any Facility Fee or any other amount payable under
this Agreement is outstanding and unpaid or the Commitments
have not been terminated.
SECTION 9.03. Binding Effect. This Agreement shall
become effective when it shall have been executed by the
Company and the Administrative Agent and when the
Administrative Agent shall have received copies hereof
(telecopied or otherwise) which, when taken together, bear the
signature of each Lender, and thereafter shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrowers
shall not have the right to assign any rights hereunder or any
interest herein without the prior consent of all the Lenders.
SECTION 9.04. Successors and Assigns. (a) 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 any party that are contained in
this Agreement shall bind and inure to the benefit of its
successors and assigns.
(b) Each Lender may assign to one or more assignees all
or a portion of its interests, rights and obligations under
this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it); provided, however,
that (i) except in the case of an assignment to a Lender or a
domestic Affiliate of a Lender, the Company must give its
prior written consent to such assignment (which consent shall
not be unreasonably withheld), (ii) the amount of the
Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $10,000,000,
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Accep-
tance, and a processing and recordation fee of $3,000 and (iv)
the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.
Upon acceptance and recording pursuant to paragraph (e) of
this Section 9.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall
be at least five Business Days after the execution thereof,
(A) the assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under
this Agreement and (B) the assigning Lender thereunder shall,
to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall
cease to be a party hereto (but shall continue to be entitled
to the benefits of Sections 2.12, 2.14, 2.19 and 9.05, as well
as to any Facility Fees accrued for its account hereunder and
not yet paid)). Notwithstanding the foregoing, any Lender
assigning its rights and obligations under this Agreement may
retain any Competitive Loans made by it outstanding at such
time, and in such case shall retain its rights hereunder in
respect of any Loans so retained until such Loans have been
repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of
any adverse claim, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with
this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished
pursuant hereto or the financial condition of the Borrowers or
the performance or observance by the Borrowers of any
obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement,
together with copies of the most recent financial statements
delivered pursuant to Section 5.01 and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender
or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking
action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the
terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of
its offices in the City of New York a copy of each Assignment
and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
Commitment of, and the principal amount of the Loans owing to,
each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be
conclusive in the absence of manifest error and the Borrowers,
the Administrative Agent and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by
each party hereto, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee
together with an Administrative Questionnaire completed in
respect of the assignee (unless the assignee shall already be
a Lender hereunder), the processing and recordation fee
referred to in paragraph (b) above and, if required, the
written consent of the Company to such assignment, the
Administrative Agent shall (i) accept such Assignment and
Acceptance and (ii) record the information contained therein
in the Register.
(f) Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided,
however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) each participating bank
or other entity shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.12, 2.14 and
2.19 to the same extent as if it was the selling Lender (but
limited to the amount that could have been claimed by the
selling Lender had it continued to hold the interest of such
participating bank or other entity), except that all claims
made pursuant to such Sections shall be made through such
selling Lender, and (iv) the Borrowers, the Administrative
Agent and the other Lenders shall continue to deal solely and
directly with such selling Lender in connection with such
Lender's rights and obligations under this Agreement, and such
selling Lender shall retain the sole right to enforce the
obligations of the Borrowers relating to the Loans and to
approve any amendment, modification or waiver of any provision
of this Agreement (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of
principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date
fixed for the payment of interest on the Loans or changing or
extending the Commitments).
(g) Any Lender or participant may, in connection with
any assignment or participation or proposed assignment or
participation pursuant to this Section, disclose to the
assignee or participant or proposed assignee or participant
any information relating to the Borrowers furnished to such
Lender; provided that, prior to any such disclosure, each such
assignee or participant or proposed assignee or participant
shall execute an agreement whereby such assignee or
participant shall agree (subject to customary exceptions) to
preserve the confidentiality of any such information.
(h) The Borrowers shall not assign or delegate any
rights and duties hereunder without the prior written consent
of all Lenders.
(i) Any Lender may at any time pledge all or any portion
of its rights under this Agreement to a Federal Reserve Bank;
provided that no such pledge shall release any Lender from its
obligations hereunder or substitute any such Bank for such
Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, each Borrower shall, at
the request of the assigning Lender, duly execute and deliver
to the assigning Lender a promissory note or notes evidencing
the Loans made to such Borrower by the assigning Lender
hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrowers
agree, jointly and severally, to pay the fees and
disbursements of counsel for the Administrative Agent in
connection with entering into this Agreement and in connection
with any amendments, modifications or waivers of the
provisions hereof, and agree, jointly and severally, to pay
the reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender in connection with the
enforcement or protection of their rights in connection with
this Agreement or the Loans made hereunder, including the
reasonable fees and disbursements of counsel for the
Administrative Agent or any Lender.
(b) The Borrowers agree, jointly and severally, to
indemnify the Administrative Agent, each Lender, each of their
Affiliates and the directors, officers, employees and agents
of the foregoing (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against any Indemnitee
arising out of (i) the execution or delivery of this Agreement
or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective
obligations thereunder or the consummation of the transactions
contemplated thereby, (ii) the use of the proceeds of the
Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not
any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or
related expenses are finally determined by a court of
competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee or from
such Indemnitee's violation of the Federal securities laws
prohibiting insider trading.
(c) The provisions of this Section shall remain
operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on
behalf of the Administrative Agent or any Lender. All amounts
due under this Section shall be payable on written demand
therefor.
SECTION 9.06. Applicable Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.07. Waivers; Amendment. (a) No failure or
delay of the Administrative Agent or any Lender in exercising
any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps
to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Administrative Agent
and the Lenders hereunder are cumulative and are not exclusive
of any rights or remedies which they would otherwise have. No
waiver of any provision of this Agreement or consent to any
departure therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such
waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or
demand on any Borrower or any Subsidiary in any case shall
entitle such party to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement
or agreements in writing entered into by the Borrowers and the
Required Lenders; provided, however, that no such agreement
shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date
for the payment of any interest on any Loan, or waive or
excuse any such payment or any part thereof, or decrease the
rate of interest on any Loan, without the prior written
consent of each Lender affected thereby, (ii) increase the
Commitment or decrease the Facility Fee of any Lender or
extend any date for payment thereof without the prior written
consent of such Lender, (iii) amend or modify the provisions
of Section 2.15 or Section 9.04(h), the provisions of this
Section or the definition of the "Required Lenders," or (iv)
release the Company from any of its obligations under Article
VII hereof without the prior written consent of each Lender;
provided further, however, that no such agreement shall amend,
modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written
consent of the Administrative Agent. Each Lender shall be
bound by any waiver, amendment or modification authorized by
this Section and any consent by any Lender pursuant to this
Section shall bind any assignee of its rights and interests
hereunder.
SECTION 9.08. Entire Agreement. This Agreement
constitutes the entire contract among the parties relative to
the subject matter hereof. Any previous agreement among the
parties with respect to the subject matter hereof is
superseded by this Agreement. Nothing in this Agreement,
expressed or implied, is intended to confer upon any party
other than the parties hereto any rights, remedies, obliga-
tions or liabilities under or by reason of this Agreement.
SECTION 9.09. Severability. In the event any one or
more of the provisions contained in this Agreement should be
held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected
or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.10. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together
shall constitute but one contract, and shall become effective
as provided in Section 9.03.
SECTION 9.11. Headings. Article and Section headings
and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration
in interpreting, this Agreement.
SECTION 9.12. Right of Setoff. If an Event of Default
shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time
owing by such Lender to or for the credit or account of the
Company and any Borrowing Subsidiary now or hereafter existing
under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured.
Each Lender agrees promptly to notify the Company after such
setoff and application made by such Lender, but the failure to
give such notice shall not affect the validity of such setoff
and application. The rights of each Lender under this Section
are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which such Lender
may have.
SECTION 9.13. Jurisdiction; Consent to Service of
Process. (a) Each Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Subject to
the foregoing and to paragraph (b) below, nothing in this
Agreement shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to
this Agreement against any other party hereto in the courts of
any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively
do so, any objection which 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 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 in the manner provided for notices in
Section 9.01. 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 9.14. Waiver of Jury Trial. Each party hereto
hereby waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of
any litigation directly or indirectly arising out of, under or
in connection with this Agreement. Each party hereto (a)
certifies that no representative, agent or attorney of any
other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to
enforce the foregoing waiver and (b) acknowledges that it and
other parties hereto have been induced to enter into this
Agreement by, among other things, the mutual waivers and
certification in this Section.
SECTION 9.15. Addition of Borrowing Subsidiaries. Each
wholly owned Subsidiary of the Company which shall deliver to
the Administrative Agent a Borrowing Subsidiary Agreement
executed by such Subsidiary and the Company shall, upon such
delivery and without further act, become a party hereto and a
Borrower hereunder with the same effect as if it had been an
original party to this Agreement.
SECTION 9.16. Confidentiality. Each Lender and the
Administrative Agent agree to keep confidential the
Information (as defined below), except that any such Lender
and the Administrative Agent shall be permitted to disclose
Information (a) to such of its officers, directors, employees,
agents and representatives as need to know such Information;
(b) to the extent required by applicable laws and regulations
or by any subpoena or similar legal process, including with
respect to the enforcement of this Agreement, provided that
such Lender and the Administrative Agent shall use reasonable
efforts to notify the Company of such prospective disclosure
a reasonable time prior to any such disclosure and shall take
such actions reasonably requested by the Company to assist the
Company in obtaining a protective order or confidential
treatment with respect to such Information (it being
understood that failure to give such notice after having made
any such reasonable efforts shall not result in any liability
hereunder to such Lender or the Administrative Agent, as the
case may be); (c) to the extent requested by any bank
regulatory authority; (d) to the extent such Information (i)
becomes publicly available other than as a result of a breach
of this Agreement, (ii) becomes available to such Lender or
the Administrative Agent on a non-confidential basis from a
source other than the Company and its Affiliates or (iii) was
available to such Lender or the Administrative Agent on a
non-confidential basis prior to its disclosure to such Lender or
the Administrative Agent by the Company or its Affiliates; (e)
to any actual or prospective assignee or participant in any
rights of such Lender or the Administrative Agent under this
Agreement, provided that such assignee or participant delivers
to the Administrative Agent or such Lender, as applicable, a
confidentiality letter containing substantially the
undertakings set forth in this Section 9.16 and (f) to the
extent the Company shall have consented to such disclosure in
writing. As used in this Section 9.16, "Information" shall
mean any materials, documents and information (other than
annual reports, prospectuses, proxy statements and other
materials distributed to the Company's shareholders) that the
Company or any of its Subsidiaries may have furnished or may
hereafter furnish to the Administrative Agent or any Lender in
connection with Sections 4.03(d), 5.01, 5.04 and 5.05 of this
Agreement.
SECTION 9.17. Collateral. Each of the Lenders
represents to each of the other Lenders 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 9.18. Interest Rate Limitation. Notwith-standing
anything herein to the contrary, if at any time the
applicable interest rate, together with all fees and charges
which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise
contracted for, charged, received, taken or reserved by any
Lender, shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received
or reserved by such Lender in accordance with applicable law,
all Charges payable to such Lender shall be limited to the
Maximum Rate.
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.
EG&G, INC.,
by
/s/ John F. Alexander, II
John F. Alexander, II
Corporate Controller
Acting Chief Financial Officer
CHEMICAL BANK, individually and as
Administrative Agent,
by
/s/ John J. Huber III
John J. Huber III
Managing Director
THE FIRST NATIONAL BANK OF BOSTON,
by
/s/ Thomas Farley Jr.
Thomas Farley Jr.
Vice President
DRESDNER BANK A.G., NEW YORK BRANCH
AND GRAND CAYMAN BRANCH,
by
/s/ Ernest Fung
Ernest Fung
Vice President
by
/s/J. M. Leffler
J. M. Leffler
First Vice President
THE NORTHERN TRUST COMPANY,
by
/s/Greg Werd
Greg Werd
Vice President
ROYAL BANK OF CANADA,
by
SOCIETE GENERALE,
by
/s/Jan Wertlieb
Jan Wertlieb
Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
by
/s/Linda M. Harris
Linda M. Harris
Senior Vice President
EXHIBIT A-1
FORM OF
COMPETITIVE BID REQUEST
Chemical Bank, as Administrative Agent for
the Lenders referred to below
270 Park Avenue
New York, NY 10017
[Date]
Attention: Ted Swimmer
Ladies and Gentlemen:
The undersigned, EG&G, Inc., a Massachusetts corporation (the
"Company"), refers to the [3-Year] [364-Day] Competitive
Advance and Revolving Credit Facility Agreement dated as of
March 21, 1994 (as amended, modified, extended or restated
from time to time, collectively, the "Credit Agreement"),
among the Company, the Lenders named therein and Chemical
Bank, as Administrative Agent. Capitalized terms used herein
and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Company
hereby gives you notice pursuant to Section 2.03(a) of the
Credit Agreement that it requests a Competitive Borrowing
under the Credit Agreement, and in that connection sets forth
below the terms on which such Competitive Borrowing is
requested to be made:
(A) Interest Rate Basis 1/ ____________ ____________ ___________
(B) Date of Competitive Borrowing
(which is a Business Day) ____________ ____________ ___________
(C) Interest Period and the last
day thereof 2/ ____________ ____________ ___________
(D) Principal Amount of
Competitive Borrowing 3/ $____________ $____________ $__________
Upon acceptance of any or all of the Loans offered by the
Lenders in response to this request, the Company shall be
deemed to affirm as of such date the representations and
warranties made in the Credit Agreement to the extent
specified in Article IV thereof.
Very truly yours,
EG&G, INC.
by__________________________
Title: (Responsible Officer)
Copy to:
Chemical Bank Agency Services Corporation
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Sandra Miklave
1/ Eurodollar Competitive Loan or Fixed Rate Loan.
2/ Which shall be subject to the definition of "Interest
Period" and end not later than the Maturity Date.
3/ Not less than $5,000,000 and in integral multiples of
$1,000,000.
EXHIBIT A-2
FORM OF
COMPETITIVE BID INVITATION
[Name of Lender]
[Address]
[Date]
Ladies and Gentlemen:
Reference is made to the [3-Year] [364-Day] Competitive
Advance and Revolving Credit Facility Agreement dated as of
March 21, 1994 (as amended, modified, extended or restated
from time to time, collectively, the "Credit Agreement"),
among EG&G, Inc., a Massachusetts corporation (the "Company"),
the Lenders named therein and Chemical Bank, as Administrative
Agent. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms
in the Credit Agreement. The Company made a Competitive Bid
Request on [date], 19 , pursuant to Section 2.03(a) of the
Credit Agreement, and in that connection you are invited to
submit a Competitive Bid by [Date]/[Time]. 1/ Your Competitive
Bid must comply with Section 2.03(b) of the Credit Agreement
and the terms set forth below on which the Competitive Bid
Request was made:
(A) Interest Rate Basis
(B) Date of Competitive Borrowing
(C) Interest Period and the last
day thereof
(D) Principal Amount of
Competitive Borrowing $
Very truly yours,
CHEMICAL BANK, as Administrative
Agent,
by
________________________________
Title:
1/ The Competitive Bid must be received by the
Administrative Agent (i) in the case of Eurodollar
Competitive Loans, not later than 9:30 a.m., New York
City time, three Business Days before a proposed
Competitive Borrowing, and (ii) in the case of Fixed Rate
Loans, no later than 9:30 a.m., New York City time, on
the Business Day of a proposed Competitive Borrowing.
EXHIBIT A-3
FORM OF
COMPETITIVE BID
Chemical Bank, as Administrative Agent
for the Lenders referred to below,
270 Park Avenue
New York, NY 10017
[Date]
Attention: Ted Swimmer
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the [3-Year]
[364-Day] Competitive Advance and Revolving Credit Facility
Agreement dated as of March 21, 1994 (as amended, modified,
extended or restated from time to time, collectively, the
"Credit Agreement"), among EG&G, Inc., a Massachusetts
corporation (the "Company"), the Lenders named therein and
Chemical Bank, as Administrative Agent. Capitalized terms
used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The
undersigned hereby makes a Competitive Bid pursuant to Section
2.03(b) of the Credit Agreement, in response to the
Competitive Bid Request made by the Company on [date], 19 ,
and in that connection sets forth below the terms on which
such Competitive Bid is made:
(A) Interest Period and
last day thereof ______________ __________________ _____________
(B) Principal Amount 1/ $______________ $__________________ $_____________
(C) Competitive Bid
Rate 2/ ______________ __________________ _____________
The undersigned hereby confirms that it is prepared,
subject to the conditions set forth in the Credit Agreement,
to extend credit to the Company upon acceptance by the Company
of this bid in accordance with Section 2.03(d) of the Credit
Agreement.
Very truly yours,
[NAME OF LENDER],
by
________________________________
Title:
Copy to:
Chemical Bank Agency Services Corporation
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Sandra Miklave
1/ Not less than $5,000,000 or greater than the requested Com-
petitive Borrowing and in integral multiples of $1,000,000.
Multiple bids will be accepted by the Administrative Agent.
2/ i.e., LIBOR + or - %, in the case of Eurodollar
Competitive Loans or %, in the case of Fixed Rate Loans.
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
Chemical Bank, as Administrative Agent
for the Lenders referred to below
270 Park Avenue
New York, NY 10017
Attention: Ted Swimmer
Ladies and Gentlemen:
The undersigned, EG&G, Inc. (the "Company"), refers to
the [3-Year] [364-Day] Competitive Advance and Revolving
Credit Facility Agreement dated as of March 21, 1994 (as
amended, modified, extended or restated from time to time,
collectively, the "Credit Agreement"), among the Company, the
Lenders named therein and Chemical Bank, as Administrative
Agent.
In accordance with Section 2.03(c) of the Credit
Agreement, we have received a summary of bids in connection
with our Competitive Bid Request dated ___________ and in
accordance with Section 2.03(d) of the Credit Agreement, we
hereby accept the following bids for maturity on [date]:
Principal Amount
$
$
Fixed Rate/Margin
[%]/[+/-. %]
Lender
We hereby reject the following bids:
Principal Amount
$
$
Fixed Rate/Margin
[%]/[+/-. %]
Lender
The $ should be deposited in Chemical Bank
account number [ ] on [date].
Very truly yours,
EG&G, INC.
by
Name:
Title:
Copy To:
Chemical Bank Agency Services Corporation
Grand Central Tower
140 East 45th Street
New York, NY 10017
Attention: Sandra Miklave
EXHIBIT A-5
FORM OF
STANDBY BORROWING REQUEST
Chemical Bank, as Administrative Agent
for the Lenders referred to below,
270 Park Avenue
New York, NY 10017
[Date]
Attention: Ted Swimmer
Ladies and Gentlemen:
The undersigned, EG&G, Inc., a Massachusetts
corporation (the "Company"), refers to the [3-Year] [364-Day]
Competitive Advance and Revolving Credit Facility
Agreement dated as of March 21, 1994 (as amended, modified,
extended or restated from time to time, collectively, the
"Credit Agreement"), among the Company, the Lenders named
therein and Chemical Bank, as Administrative Agent.
Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the
Credit Agreement. The Company hereby gives you notice
pursuant to Section 2.04 of the Credit Agreement that it
requests a Standby Borrowing under the Credit Agreement, and
in that connection sets forth below the terms on which such
Standby Borrowing is requested to be made:
(A) Date of Standby Borrowing
(which is a Business Day) _________________________________
(B) Principal Amount of
Standby Borrowing 1/ $_________________________________
(C) Interest rate basis 2/ _________________________________
(D) Interest Period and the
last day thereof 3/ _________________________________
Upon acceptance of any or all of the Loans made by the
Lenders in response to this request, the Company shall be
deemed to have represented and warranted (but only to the
extent required by Section 4.01 of the Credit Agreement) that
the conditions to lending specified in Section 4.01(b) and (c)
of the Credit Agreement have been satisfied.
Very truly yours,
EG&G, INC.
by
___________________________
Title: [Responsible Officer]
Copy to:
Chemical Bank Agency Services Corporation
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Sandra Miklave
1/ Not less than $5,000,000 and in integral multiples of
$1,000,000.
2/ Eurodollar Standby Loan or ABR Loan.
3/ Which shall be subject to the definition of "Interest
Period" and end not later than the Maturity Date.
EXHIBIT B
ADMINISTRATIVE QUESTIONNAIRE
EG&G, INC.
Please accurately complete the following information and
return via FAX to the attention of Sandra Miklave at Chemical
Bank Agency Services Corporation as soon as possible.
FAX Number: 212-622-0002
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
GENERAL INFORMATION - DOMESTIC RATE LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
CREDIT CONTACTS/NOTIFICATION METHODS:
Primary Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
Backup Credit Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
TAX WITHHOLDING:
UNITED STATES
Non-Resident Alien or Foreign Corporation or Other Foreign
Entity __________ YES __________ NO
If yes, please enclose Form 4224, 1001 or W-8. If no,
please enclose Form W-9.
Tax ID Number _________________________________
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST,
FEES, ETC.
Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
Telex & Answer Back:
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
Routing Transit/ABA number of Bank where funds are to be
transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
BID LOAN NOTIFICATIONS:
Contact:
Street Address:
City, State, Zip Code:
Phone Number:
Fax Number:
MAILINGS:
Please specify who should receive financial information:
Name:
Street Address:
City, State, Zip Code:
It is very important that all of the above information is
accurately filled in and returned promptly. If there is
someone other than yourself who should receive this
questionnaire, please notify us of their name and FAX number
and we will FAX them a copy of the questionnaire. If you have
any questions, please call Sandra Miklave at 212-622-0005,
telecopy 212-622-0002.
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the [3-Year] [364-Day] Competitive
Advance and Revolving Credit Facility Agreement dated as of
March 21, 1994, (as amended, modified, extended or restated
from time to time, collectively, the "Credit Agreement"),
among EG&G, Inc., a Massachusetts corporation, the Lenders
named therein and Chemical Bank, as Administrative Agent.
Terms defined in the Credit Agreement are used herein with the
same meanings.
1. The Assignor hereby sells and assigns, without
recourse, to the Assignee, and the Assignee hereby purchases
and assumes, without recourse, from the Assignor, effective as
of the Effective Date set forth on the following page, the
interests set forth on the following page (the "Assigned
Interest") in the Assignor's rights and obligations under the
Credit Agreement, including, without limitation, the interests
set forth on the following page in the Commitment of the
Assignor on the Effective Date and the Loans owing to the
Assignor which are outstanding on the Effective Date, together
with unpaid interest accrued on the assigned Loans to the
Effective Date and the amount, if any, set forth on the
following page of the Fees accrued to the Effective Date for
the account of the Assignor. Each of the Assignor and the
Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in
Section 9.04(c) of the Credit Agreement, a copy of which has
been received by each such party. From and after the
Effective Date (i) the Assignee shall be a party to and be
bound by the provisions of the Credit Agreement and, to the
extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender
thereunder and under the Credit Agreement or any other
document issued in connection therewith and (ii) the Assignor
shall, to the extent of the interests assigned by this
Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to
the Administrative Agent together with (i) if the Assignee is
organized under the laws of a jurisdiction outside the United
States, the forms prescribed by the Internal Revenue Service
of the United States certifying as to the Assignee's exemption
from withholding taxes with respect to all payments to be made
to the Assignee under the Credit Agreement or such other
documents as are necessary to indicate that all such payments
are subject to such tax at a rate reduced by an applicable tax
treaty, all duly completed and executed by such Assignee, (ii)
if the Assignee is not already a Lender under the Credit
Agreement, an Administrative Questionnaire and (iii) a
processing and recordation fee of $3,000.
3. This Assignment and Acceptance shall be governed by
and construed in accordance with the laws of the State of New
York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Percentage Assigned of
Facility and Commitment
(set forth, to at least
8 decimals, as a percentage
Principal Amount Assigned (and of the Facility and the
identifying information as to aggregate Commitments of
Facility individual Competitive Loans) all Lenders therunder)
- ------------------------------------------------------------------------------
Commitment Assigned: $ %
Standby Loans: $ %
Competitive Loans: $ %
Fees Assigned (if any): $ %
The terms set forth above and on the preceding
page are hereby agreed to: [Accepted
________________, as Assignor CHEMICAL BANK, as Administrative Agent
By:__________________________ By:__________________________
Name: Name:
Title: Title:
________________, as Assignee
EG&G, INC.
By:__________________________ By:__________________________
Name: Name:
Title: Title: ]
]
EXHIBIT D-1
FORM OF OPINION OF MURRAY GROSS, ESQ.
[Date]
To the Lenders party to the Credit
Agreements referred to below and
Chemical Bank, as Administrative Agent
Ladies and Gentlemen:
I am the General Counsel of EG&G, Inc., a Massachusetts
corporation (the "Company"), and have acted in the capacity of
General Counsel in connection with each of the 3-Year and 364-Day
Competitive Advance and Revolving Credit Facility
Agreements dated as of March 21, 1994 (collectively, the
"Credit Agreements"), among the Company, the lenders listed in
Schedule 2.01 thereto (the "Lenders"), and Chemical Bank, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent"). This opinion letter is being
furnished to you at the request of the Company pursuant to
Section 4.02(a) of the Credit Agreements. Capitalized terms
used but not defined herein shall have the meanings assigned
to such terms in the Credit Agreements.
In connection with the opinions expressed below, I have
examined the Credit Agreements (including the Exhibits
thereto) and originals or copies, certified or otherwise
identified to my satisfaction, of (a) such corporate records
of the Company as I have considered appropriate, including
copies of the articles of incorporation, as amended, and by-laws,
as amended, of the Company certified as in effect on the
date hereof (collectively, the "Charter Documents") and
certified copies of resolutions of the board of directors of
the Company and (b) such other certificates, agreements,
documents and other instruments of the Company as I have
deemed relevant and necessary as a basis for the opinions
hereinafter expressed, and I have assumed the genuineness of
all signatures therein. The documents listed above are
collectively referred to herein as the "Documents".
Based upon the foregoing, and subject to the
assumptions, limitations and qualifications set forth herein,
I am of the opinion that:
1. The Company (a) is a corporation duly incorporated,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and is qualified to do business
in every jurisdiction where such qualification is necessary
except where the failure to so qualify would not have a
material adverse effect on the business, consolidated
financial position or consolidated results of operations of
the Company and its Consolidated Subsidiaries taken as a
whole, (b) has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and (c) has
the corporate power to execute, deliver and perform its
obligations under each of the Documents to which it is a party
and to borrow under the Credit Agreements.
2. The execution, delivery and performance by the
Company of each of the Documents to which it is a party and
the borrowings under the Credit Agreements (a) are within the
Company's corporate powers, (b) have been duly authorized by
all necessary corporate action, (c) require no action by or in
respect of, or filing with, any Governmental Authority, (d) do
not (i) contravene, or constitute a default under, any
applicable provision of statutory law or regulation either of
the United States or the Commonwealth of Massachusetts or of
the Charter Documents of the Company or of any existing
agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or (ii) result in the
creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries and (e) do not and will not (i)
violate any order of any Governmental Authority binding upon
the Company, (ii) violate, conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a
default under any existing indenture, mortgage, agreement for
borrowed money, bond, note or similar instrument or any other
material agreement to which the Company is a party or by which
the Company or any of its property is bound.
3. There is no action, suit or proceeding pending
against, or to my knowledge threatened against 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 probability of a final adverse decision which would
materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Company and its Consolidated Subsidiaries taken as a whole
or which in any manner draws into question the validity of any
Document to which the Company is a party.
4. Each of the Documents to which the Company is a
party has been duly executed and delivered by the Company and
is a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and to general equitable
principles from time to time in effect.
5. Assuming that the proceeds of the Loans are used for
the purposes set forth in the Credit Agreements, the making of
the Loans and such use will not violate or be inconsistent
with Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System of the United States.
6. The Company is not (a) an "investment company" as
defined in, or subject to regulation under, the Investment
Company Act of 1940 or (b) a "holding company" as defined in,
or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended.
The opinions expressed herein are limited to the laws of
the Commonwealth of Massachusetts and of the United States of
America.
This letter is furnished by me solely for your benefit
and for the benefit of assignees of your rights and
obligations under the Credit Agreements in connection with the
transactions referred to in the Documents and may not, without
my prior written consent, be circulated to, or relied upon by,
any other person or used in any other context.
Very truly yours,
263A
EXHIBIT D-2
FORM OF OPINION OF MURRAY GROSS, ESQ.
[Date]
To the Lenders party to the Credit
Agreements referred to below and
Chemical Bank, as Administrative Agent
Ladies and Gentlemen:
I am the General Counsel of EG&G, Inc., a Massachusetts
corporation (the "Company"), and have acted in the capacity of
General Counsel in connection with (a) each of the 3-Year and
364-Day Competitive Advance and Revolving Credit Facility
Agreements dated as of March 21, 1994 (collectively, as in
effect on the date hereof, the "Credit Agreements"), among the
Company, the lenders listed in Schedule 2.01 thereof (together
with their successors and assigns, the "Lenders"), and
Chemical Bank, as administrative agent for the Lenders (in
such capacity, the "Administrative Agent") and (b) the
Borrowing Subsidiary Agreement dated as of the date hereof
(the "Borrowing Subsidiary Agreement") among the Company, [New
Borrower], a [ ] corporation (the "New Borrower"), the
Lenders and the Administrative Agent. This opinion letter is
being furnished to you at the request of the Company pursuant
to Section 4.03(a) of the Credit Agreements. Capitalized
terms used but not defined herein shall have the meanings
assigned to such terms in the Credit Agreements.
In connection with the opinions expressed below, I have
examined (a) the Credit Agreements (including the Exhibits
thereto), (b) the Borrowing Subsidiary Agreement and (c)
originals or copies, certified or otherwise identified to my
satisfaction, of (i) such corporate records of the New
Borrower as I have considered appropriate, including copies of
the articles of incorporation, as amended, and by-laws, as
amended, of the New Borrower certified as in effect on the
date hereof (collectively, the "Charter Documents") and
certified copies of resolutions of the board of directors of
the New Borrower and (ii) such other certificates, agreements,
documents and other instruments of the New Borrower as I have
deemed relevant and necessary as a basis for the opinions
hereinafter expressed. The documents listed above are
collectively referred to herein as the "Documents".
Based upon the foregoing, and subject to the
assumptions, limitations and qualifications set forth herein,
I am of the opinion that:
1. The New Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to do
business and in good standing in each other jurisdiction in
which it owns property and/or conducts its business and in
which failure to be so qualified and in good standing would
have a materially adverse effect on the business of the New
Borrower.
2. The execution, delivery and performance by the New
Borrower of its Borrowing Subsidiary Agreement, and the
performance by the New Borrower of the provisions of the
Credit Agreements applicable to it, are within its corporate
powers, have been duly authorized by all necessary corporate
action and do not contravene (a) its Charter Documents or (b)
any law or any contractual restriction binding on or affecting
it.
3. No authorization or approval or other action by, and
no notice to or filing with, any Governmental Authority is
required for the due execution, delivery and performance by
the New Borrower of its Borrowing Subsidiary Agreement or for
the performance by the New Borrower of the provisions of the
Credit Agreements applicable to it, except for those which
have been duly obtained or made and are in full force and
effect.
4. The Borrowing Subsidiary Agreement and the Credit
Agreements are legal, valid and binding obligations of the New
Borrower enforceable against it in accordance with their
respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the enforcement of the rights of creditors generally
and subject to general equitable principles from time to time
in effect.
The opinions expressed herein are limited to the laws of
the Commonwealth of Massachusetts and of the United States of
America.
This letter is furnished by me solely for your benefit
and for the benefit of assignees of your rights and
obligations under the Credit Agreements in connection with the
transactions referred to in the Documents and may not, without
my prior written consent, be circulated to, or relied upon by,
any other person or used in any other context.
Very truly yours,
263A
EXHIBIT E
BORROWING SUBSIDIARY AGREEMENT dated as of _________ ,
19__, among EG&G, INC., a Massachusetts corporation (the
"Company"), [Name of Subsidiary], a [ ] corporation
(the "New Subsidiary"), the Lenders named in Schedule 2.01 to
the Credit Agreements referred to below (together with their
successors and assigns, the "Lenders") and CHEMICAL BANK, a
New York banking corporation, as Administrative Agent for the
Lenders (in such capacity, the Administrative Agent).
Reference is hereby made to each of the 3-Year and 364-Day
Competitive Advance and Revolving Credit Facility
Agreements dated as of March 21, 1994 (collectively, the
"Credit Agreements") between the Company, the Borrowing
Subsidiaries (as such term is defined therein; together with
the Company, the "Borrowers"), the Lenders and the
Administrative Agent. Capitalized terms used herein but not
otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreements. Under the Credit
Agreements, the Lenders have agreed, upon the terms and
subject to the conditions therein set forth, to make revolving
credit loans to the Company and to wholly owned Subsidiaries
that execute and deliver to the Lenders Borrowing Subsidiary
Agreements in the form of this Agreement. The Company
represents that the New Subsidiary is a wholly owned
Subsidiary. The parties hereto agree that the guarantee of
the Company contained in the Credit Agreements applies to the
obligations of the New Subsidiary. In consideration of being
permitted to borrow under the Credit Agreements upon the terms
and subject to the conditions set forth therein, the New
Subsidiary agrees that from and after the date of this
Agreement it will be, and will be liable for the observance
and performance of all the obligations of, a Borrowing
Subsidiary under the Credit Agreements (including as a
Borrower thereunder), as the same may be amended from time to
time, to the same extent as if it had been one of the original
parties to the Credit Agreements including, without
limitation, Section 9.13 thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their authorized officers as
of the date first appearing above.
[New Subsidiary]
by _________________________
Name:
Title:
EG&G, INC.,
by _________________________
Name:
Title:
CHEMICAL BANK, as Administrative
Agent on behalf of the Lenders,
by _________________________
Name:
Title:
Schedule 2.01
to Credit Agreement
Lenders and Commitments
Lender Commitment
Chemical Bank $28,000,000
270 Park Avenue, 9th Floor
New York, New York 10017
Attention: Theodore Swimmer
Telephone: (212) 270-5720
Telecopy: (212) 270-3504
The First National Bank of Boston 28,000,000
100 Federal Street
Boston, MA 02110
Attention: Mr. Thomas F. Farley, Jr.
Telephone: (617) 434-5812
Telecopy: (617) 434-0637
Dresdner Bank A.G., New York Branch 21,000,000
and Grand Cayman Branch
75 Wall Street
New York, NY 10005-2889
Attention: Mr. Ernest Fung
Telephone: (212) 575-0237
Telecopy: (212) 921-9416
The Northern Trust Company 21,000,000
50 South LaSalle Street
Chicago, IL 60675
Attention: Mr. Gregory F. Werd, Jr.
Telephone: (312) 444-3504
Telecopy: (312) 444-3508
Royal Bank of Canada 21,000,000
New York Branch
c/o New York Operations Center
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Attention: Manager, Loans Administration
Telephone: (212) 858-7168
Telecopy: (718) 522-6292/3
with a copy to:
Royal Bank of Canada
Financial Square
New York, New York 10005-3531
Attention: Sheryl L. Greenberg
Telephone: (212) 428-6476
Telecopy: (212) 428-6459
Societe Generale 28,000,000
50 Rockefeller Plaza
New York, NY 10020
Attention: Ms. Jan Wertlieb
Telephone: (212) 830-6881
Telecopy: (212) 581-8752
Wachovia Bank of Georgia, N.A. $28,000,000
191 Peachtree Street, N.E.
Atlanta, GA 30303
Attention: Ms. Elizabeth Colt
Telephone: (404) 332-4089
Telecopy: (404) 332-6898
CONFORMED COPY
AMENDMENT No. 1 (this "Amendment"), dated as of March 15, 1995, to
the 364-Day Competitive Advance and Revolving Credit Facility Agreement
(the "364-Day Agreement"), dated as of March 21, 1994, among EG&G, INC.,
a Massachusetts corporation (the "Company"), the Borrowing Subsidiaries
(as such term is defined herein; together with the Company, the
"Borrowers"), the Lenders listed in Schedule 2.01 thereof (the
"Lenders") and CHEMICAL BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent"). Capitalized terms used herein and defined in
the 364-Day Agreement have the meanings set forth in the 364-Day
Agreement.
WHEREAS, the Borrowers have requested and the Administrative Agent
and the Lenders are willing to amend certain provisions of the 364-Day
Agreement for the limited purposes described and on the terms and
conditions set forth herein;
NOW, THEREFORE, for and in consideration of the premises and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree, subject to Section 5
below, as follows:
1. The definition of the term "Maturity Date" in Section 1.01 of
the 364-Day Agreement is hereby deleted and replaced by the following
sentence: "Maturity Date" shall mean March 19, 1996.
2. The representations and warranties in the 364-Day Agreement are
correct in all material respects on and as of the date hereof, before
and after the execution and delivery of this Amendment, as though made
on and as of the date hereof and no event has occurred and is
continuing, or would result from the execution and delivery of this
Amendment, that constitutes a Default or Event of Default.
3. Except as otherwise expressly modified hereby, all terms and
provisions of the 364-Day Agreement shall be and shall remain unchanged
and the 364-Day Agreement is hereby ratified and confirmed and shall be
and shall remain in full force and effect, enforceable in accordance
with its terms. Any reference in the 364-Day Agreement, or in any
documents or instruments required thereunder or annexes or schedules
thereto, referring to the 364-Day Agreement shall be deemed to refer to
the 364-Day Agreement as amended by this Amendment.
4. This Amendment may be executed in two or more counterparts, any
one of which need not contain the signatures of more than one party, but
all such counterparts taken together will constitute one and the same
Amendment.
5. The Company represents and warrants that it has all requisite
power and authority to enter into this Amendment, that this Amendment
has been duly and validly authorized, executed and delivered by such
party and this Amendment is the legal, valid and binding obligation of
such party. This Amendment shall become effective only upon the receipt
by the Administrative Agent of an opinion of counsel for the Company
confirming the representation and warranty set forth in the preceding
sentence together with evidence of the Company's authority to enter into
this Amendment, in each case satisfactory to the Administrative Agent.
6. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE
WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK AS THOUGH
WHOLLY-MADE
AND PERFORMED WITHIN SUCH STATE.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
EG&G, INC.,
by
/s/ Tom Sauser
Name: Tom Sauser
Title: CFO
CHEMICAL BANK, individually and
as Administrative Agent for the
Lenders,
by
/s/ Claude Setton
Name: Claude Setton
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON,
by
/s/ Thomas F. Farley, Jr.
Name: Thomas F. Farley, Jr.
Title: Director
DRESDNER BANK A.G., NEW YORK
BRANCH AND GRAND CAYMAN BRANCH,
by
/s/ Ernest Fung
Name: Ernest Fung
Title: VP
by
/s/ J.M. Leffler
Name: J.M. Leffler
Title: SVP
THE NORTHERN TRUST COMPANY,
by
/s/ Curtis C. Tatham, III
Name: Curtis C. Tatham, III
Title: Commercial Banking
Officer
ROYAL BANK OF CANADA,
by
/s/ T.L. Gleason
Name: T.L. Gleason
Title: Vice President
SOCIETE GENERALE,
by
/s/ Jan Wertlieb
Name: Jan Wertlieb
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
by
/s/ Linda M. Harris
Name: Linda M. Harris
Title: SVP
CONFORMED COPY
AMENDMENT No. 2 (this "Amendment"), dated as of March 14, 1996, to
the 364-Day Competitive Advance and Revolving Credit Facility Agreement,
dated as of March 21, 1994, as amended by Amendment No. 1 thereto dated
as of March 15, 1995 (as so amended, the "Agreement"), among EG&G, INC.,
a Massachusetts corporation (the "Company"), the Borrowing Subsidiaries
(as such term is defined therein; together with the Company, the
"Borrowers"), the Lenders listed in Schedule 2.01 thereof (the
"Lenders") and CHEMICAL BANK, a New York banking corpora-tion, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent"). Capitalized terms used herein and defined in
the Agreement have the meanings set forth in the Agreement.
WHEREAS the Borrowers have requested and the Administrative Agent
and the Lenders are willing to amend certain provisions of the Agreement
for the limited purposes described and on the terms and conditions set
forth herein.
NOW, THEREFORE, for and in consideration of the premises and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree, on the terms and subject
to the conditions set forth herein, as follows:
SECTION 1. Amendments. (a) The preamble of the Agreement is
hereby amended by deleting therefrom the reference to "$175,000,000" and
replacing it with a reference to "$100,000,000".
(b) Section 1.01 of the Agreement is hereby amended by:
(i) Adding the following new definitions in their proper
alphabetical order:
"'Amendment Effective Date' shall mean the date on which each
condition to effectiveness set forth in Section 3 of Amendment No.
2 to this Agreement dated as of March 14, 1996, has been
satisfied".
"'Applicable Percentage' shall mean on any date, with respect
to Eurodollar Standby Loans or with respect to the Facility Fee,
as the case may be, the applicable percentage set forth below
under the caption 'Eurodollar Spread' or 'Facility Fee
Percentage', as the case may be, based upon the Ratings in effect
on such date:
Category 1
Eurodollar Spread
Facility Fee Percentage
Aa3 or higher by Moody's;
AA- or higher by S&P
.150%
.050%
Category 2
A1 or A2 by Moody's;
A+ or A by S&P
.170%
.055%
Category 3
A3 by Moody's;
A- by S&P
.190%
.060%
Category 4
Baa1 by Moody's;
BBB+ by S&P
.220%
.080%
Category 5
Baa2 by Moody's;
BBB by S&P
.225%
.125%
Category 6
Baa3 by Moody's;
BBB- by S&P
.250%
.150%
Category 7
Ba1 or lower by Moody's;
BB+ or lower by S&P
.375%
.250%
For purposes of the foregoing, (i) if the Ratings shall fall
within different Categories, the Applicable Percentage shall be
based upon the higher of the two Categories; provided, however,
that if the difference in the Ratings is greater than one
Category, the Applicable Percentage will be based on the Category
which is one Category below the higher Rating; (ii) if no Ratings
exist, the Applicable Percentage shall be based upon Category 7,
and (iii) if any Rating shall be changed (other than as a result
of a change in the rating system of Moody's or S&P), such change
shall be effective as of the date on which it is first announced
by the rating agency making such change. Each such change in the
Applicable Percentage shall apply during the period commencing on
the effective date of such change and ending on the date
immediately preceding the effective date of the next such change.
If the rating system of Moody's or S&P shall change, or if either
such rating agency shall cease to be in the business of rating
corporate debt obligations, the parties hereto shall negotiate in
good faith to amend the references to specific ratings in this
definition to reflect such changed rating system or the non-
availability of ratings from such rating agency, and pending the
effectiveness of any such amendment the Applicable Percentage
shall be determined by reference to the rating most recently in
effect prior to such change or cessation."
"'Moody's' shall mean Moody's Investors Service, Inc., or any
of its successors."
"'Ratings' shall mean the ratings from time to time
established by Moody's and S&P for senior, unsecured, non-credit-
enhanced long-term debt of the Company."
"'S&P' shall mean Standard and Poor's Rating Group, a division
of The McGraw-Hill Companies, Inc., or any of its successors."
(ii) Deleting therefrom the definition of "Consolidated Net
Indebtedness" and replacing it with the following definition:
"'Consolidated Net Indebtedness' shall mean, for any date, (a)
the sum of all outstanding Indebtedness of the Company and its
Consolidated Subsidiaries as of such date less (b) the lesser of
(i) $50,000,000 and (ii) Eligible Investments as of such date, all
determined on a consolidated basis in accordance with GAAP."
(iii) Deleting therefrom the definition of "Facility A Credit
Agreement" and replacing it with the following definition:
"'Facility A Credit Agreement' shall mean the 3-Year
Competitive Advance and Revolving Credit Facility Agreement dated
the date hereof among the parties hereto, as amended from time to
time."
(iv) Deleting therefrom the definition of "Maturity Date" and
replacing it with the following definition:
"'Maturity Date' shall mean March 12, 1997."
(c) Section 2.05(a) of the Agreement is hereby deleted in its
entirety and replaced with the following sentences:
"The Company agrees to pay to each Lender, through the
Administrative Agent, on each March 31, June 30, September 30 and
December 31 (with the first payment being due on March 31, 1996)
and on the date on which the Commitment of such Lender shall be
terminated as provided herein, a facility fee (a 'Facility Fee'),
at a rate per annum equal to the Applicable Percentage from time
to time in effect on the average daily amount of the Commitment of
such Lender, whether used or unused, during the preceding quarter
(or other period commencing on the Amendment Effective Date, or
ending with the Maturity Date or the date on which the Commitment
of such Lender shall be terminated). All Facility Fees shall be
computed on the basis of the actual number of days elapsed in a
year of 360 days. The Facility Fee due to each Lender shall
commence to accrue on the Amendment Effective Date, and shall
cease to accrue on the earlier of the Maturity Date and the
termination of the Commitment of such Lender as provided herein."
(d) Section 2.07(a)(i) of the Agreement is hereby amended by
replacing the reference to "1/4 of 1%" with a reference to "the
Applicable Percentage from time to time in effect".
(e) Each reference in Section 3.04(a) of the Agreement to "January
3, 1993" is hereby replaced with a reference to "January 1, 1995", and
each reference in Section 3.04(b) of the Agreement to "October 3, 1993"
is hereby replaced with a reference to "October 1, 1995".
(f) Schedule 2.01 to the Agreement is hereby deleted and replaced
with Schedule 2.01 to this Amendment. It is understood and agreed that
immediately prior to the effectiveness of this Amendment the Company
shall have terminated all the Commitments then outstanding and that upon
the effectiveness of this Amendment, notwithstanding the provisions of
Section 2.10(b) of the Agreement, the outstanding Commitments shall be
as set forth on Schedule 2.01 to this Amendment.
(g) Schedule 3.08 and Schedule 3.12(b) to the Agreement are hereby
deleted and replaced, respectively, with Schedule 3.08 and Schedule
3.12(b) to this Amendment.
SECTION 2. Representations and Warranties. The Company represents
and warrants as of the Amendment Effective Date to each of the Lenders
and the Administrative Agent that:
(a) This Amendment has been duly authorized, executed and
delivered by the Company, and this Amendment is, and the Agreement, as
amended hereby, will upon the Amendment Effective Date be, the legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally or by equitable
principles relating to enforceability (whether enforcement is sought by
proceedings in equity or at law).
(b) The representations and warranties set forth in Article III
of the Agreement, as amended hereby, are true and correct in all
material respects with the same effect as if made on the Amendment
Effective Date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) Immediately before and immediately after the effectiveness of
this Amendment, no Event of Default or Default has occurred and is
continuing.
SECTION 3. Conditions to Effectiveness. This Amendment shall
become effective as of and from the Amendment Effective Date when (a)
the Administrative Agent shall have received counterparts of this
Amendment that, when taken together, bear the signatures of all the
parties hereto and (b) each of the following conditions precedent shall
have been satisfied in respect of this Amendment:
(i) immediately prior to the effectiveness of this Amendment, the
Company shall have effectively terminated all the Commitments then
outstanding in accordance with Section 2.10 of the Agreement (and,
solely for purposes of permitting each termination, the notice
requirements of Section 2.10 are hereby waived);
(ii) the Administrative Agent shall have received the payment in
full of all obligations of the Borrowers outstanding under the
Agreement, this Amendment or any related agreement;
(iii) the Administrative Agent shall have received a certificate,
dated the Amendment Effective Date and signed by a Financial Officer of
the Company, confirming (i) that the representations and warranties set
forth in Article III of the Agreement, as amended hereby, are true and
correct in all material respects, with the same effect as though made on
and as of the Amendment Effective Date, except to the extent that such
representations and warranties expressly relate to an earlier date, and
(ii) that no Event of Default or Default has occurred and is continuing;
(iv) the Administrative Agent shall have received certified copies
of the resolutions of the Board of Directors of the Company approving or
authorizing approval of the execution and delivery of this Amendment and
the performance of the Agreement as amended hereby;
(v) the Administrative Agent shall have received a certificate of
the Clerk or an Assistant Clerk of the Company, dated the Amendment
Effective Date, (A) as to the absence of amendments to the certificate
of incorporation or the by-laws of the Company since March 21, 1994 (or,
in the event there shall have been any such amendments, setting forth
copies thereof certified by the Secretary of State of Massachusetts in
the case of amendments to the certificate of incorporation and by the
Clerk or an Assistant Clerk of the Company in the case of amendments to
the by-laws), and (B) certifying the incumbency and signatures of the
officer or officers of the Company signing this Amendment;
(vi) the Administrative Agent shall have received a favorable
written opinion of the General Counsel for the Company, dated the
Amendment Effective Date and addressed to the Lenders, to the effect set
forth in Exhibit D-1 of the Agreement, provided that, for purposes of
the foregoing, references in such Exhibit to execution and delivery of
the Agreement shall be deemed to refer to execution and delivery of this
Amendment and other references therein to the Agreement shall be deemed
to refer to the Agreement as amended hereby;
(vii) the Amendment Effective Date shall have occurred on or prior
to March 19, 1996.
SECTION 4. Agreement. Except as specifically stated herein, the
provisions of the Agreement are and shall remain in full force and
effect. As used therein, the terms "Agreement", "herein", "hereunder",
"hereinafter", "hereto", "hereof" and words of similar import shall,
unless the context otherwise requires, refer to the Agreement as amended
hereby.
SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE
GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW
YORK.
SECTION 6. Counterparts. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original but all
of which when taken together shall constitute but one contract.
SECTION 7. Expenses. The Company agrees to reimburse the
Administrative Agent for all reasonable out-of-pocket expenses incurred
by it in connection with this Amendment, including, but not limited to,
the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment
to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
EG&G, INC.,
by
______________________________
Name:
Title:
CHEMICAL BANK, individually and as
Administrative Agent for the Lenders,
by
______________________________
Name:
Title:
DRESDNER BANK A.G., NEW YORK BRANCH AND
GRAND CAYMAN BRANCH,
by
/s/ J. Michael Leffler
Name: J. Michael Leffler
Title: Senior Vice President
by
/s/ Ernest Fung
Name: Ernest Fung
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
by
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
by
Name:
Title:
THE NORTHERN TRUST COMPANY,
by
/s/ Lawson E. Whiting
Name: Lawson E. Whiting
Title: Commercial Banking Officer
ROYAL BANK OF CANADA,
by
/s/ Sheryl L. Greenberg
Name: Sheryl L. Greenberg
Title: Manager
SOCIETE GENERALE,
by
/s/ Michelle Martin
Name: Michelle Martin
Title: Assistant Vice President
STANDARD CHARTERED BANK,
by
/s/ William R. Leute, II
Name: William R. Leute, III
Title: Senior Vice President
by
/s/ Gerard Lob
Name: Gerard Lob
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
by
Name:
Title:
Schedule 2.01
Lenders and Commitments
Lender Commitment
Chemical Bank $16,000,000
140 E. 45th Street
29th Floor
New York, NY 10017
Attention: Sandra Miklave
Telephone: (212) 622-0005
Telecopy: (212) 622-0002
Dresdner Bank A.G., New York Branch $10,500,000
and Grand Cayman Branch
75 Wall Street
New York, NY 10005-2889
Attention: Mr. Ernest Fung
Telephone: (212) 574-0237
Telecopy: (212) 574-0130
The First National Bank of Boston $10,500,000
100 Federal Street
Boston, MA 02110
Attention: Mr. Christopher Francis
Telephone: (617) 434-2203
Telecopy: (617) 434-0637
The First National Bank of Chicago $10,500,000
153 W. 51st St.
Equitable Building, 8th Floor
Suite 4000
New York, NY 10019
Attention: Mr. Thomas M. Harkless
Telephone: (212) 373-1175
Telecopy: (212) 373-1388
The Northern Trust Company $10,500,000
50 South LaSalle Street
Chicago, IL 60675
Attention: Mr. J. Chip McCall
Telephone: (312) 444-3504
Telecopy: (312) 444-3508
Royal Bank of Canada $10,500,000
New York Branch
c/o New York Operations Center
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, NY 11201-2701
Attention: Manager, Loan Administration
Telephone: (212) 858-7168
Telecopy: (718) 522-6292/3
with a copy to:
Royal Bank of Canada
One Financial Square, 12th Floor
New York, NY 10005-3531
Attention: Sheryl L. Greenberg
Telephone: (212) 428-6476
Telecopy: (212) 428-6459
Societe Generale $10,500,000
1221 Avenue of the Americas
New York, NY 10020
Attention: Ms. Michelle Martin
Telephone: (212) 278-7126
Telecopy: (212) 278-7430
Standard Chartered Bank $10,500,000
7 World Trade Center
New York, NY 10048
Attention: Mr. Gerard Lob
Telephone: (212) 667-0501
Telecopy: (212) 667-0225
Wachovia Bank of Georgia, N.A. $10,500,000
191 Peachtree Street, N.E.
Atlanta, GA 30303
Attention: Ms. Elizabeth Colt
Telephone: (404) 332-4089
Telecopy: (404) 332-6898
SCHEDULE 3.12 (a)
None
SCHEDULE 3.12 (b)
- Mound Facility, Miamisburg, Ohio
- Tooele Chemical Demilitarization Facility, Tooele, Utah
- Kennedy Space Center, Florida
- Langley Research Center, Langley, Virginia
SCHEDULE 3.12 (c)
None
SCHEDULE 3.08 Subsidiaries
State or Country Number
of Incorporation of
Name of Company or Organization Parent
- -------------------------------------------------------------------------------
1 EG&G, Inc. Massachusetts N/A
2 EG&G Alabama, Inc. Alabama 1
3 EG&G Aluminum, Inc. Delaware 33
4 EG&G Astrophysics Research
Corporation California 1
5 EG&G Automotive Research, Inc. Texas 22
6 EG&G Birtcher, Inc. California 33
7 EG&G Benelux B.V. Netherlands 73 (77%) 1 (23%)
8 EG&G Canada Investments, Inc. Canada 86
9 EG&G Canada Limited Canada 1 (10%) 28 (43.5%)
38 (46.5%)
10 EG&G Chandler Engineering Company Oklahoma 1
11 EG&G Defense Materials, Inc. Utah 1
12 EG&G do Brasil Ltda. Brazil 22 (95%) 85 (5%)
13 EG&G Dynatrend, Inc. Delaware 1
14 EG&G E.C. Bahrain 22
15 EG&G Energy Measurements, Inc. Nevada 1
16 EG&G Environmental, Inc. Delaware 1
17 EG&G Exporters Ltd. U.S. Virgin Islands 22
18 EG&G Florida, Inc. Florida 1
19 EG&G Flow Technology, Inc. Arizona 1
20 EG&G Gamma Scientific,
Incorporated Delaware 22
21 EG&G GmbH Germany 22
22 EG&G Holdings, Inc. Massachusetts 1 (87%) 24 ( 6%)
71 (5%) 10 (2%)
23 EG&G Idaho, Inc. Idaho 22
24 EG&G Instruments, Inc. Delaware 22
25 EG&G Instruments GmbH Germany 1
26 EG&G International, Ltd. Cayman Islands 22
27 EG&G Japan, Inc. Delaware 22
28 EG&G Judson Infrared, Inc. Pennsylvania 1
29 EG&G KT Aerofab, Inc. California 22
30 EG&G Langley, Inc. Virginia 18
31 EG&G Ltd. United Kingdom 22 (80.9%) 4 (19.1%)
32 EG&G Management Systems, Inc. New Mexico 1
33 EG&G Metals, Inc. Massachusetts 1
34 EG&G Missouri Metal
Shaping Company Missouri 22
35 EG&G Mound Applied
Technologies, Inc. Ohio 1
36 EG&G Omni, Inc. Philippines 22
37 EG&G Power Systems, Inc. California 1
38 EG&G Pressure Science Incorporated Maryland 22
39 EG&G Rocky Flats, Inc. Colorado 1
40 EG&G Sealol Eagle, Inc. Delaware 42 (51%)
41 EG&G Sealol Ltd. (Sealol Egypt) Egypt 22 (22%) 26 (78%)
42 EG&G Sealol, Inc. Delaware 22
43 EG&G Services, Inc. Delaware 1
44 EG&G Special Projects, Inc. Nevada 1
45 EG&G Star City, Inc. Ohio 2
46 EG&G Structural Kinematics, Inc. Michigan 1
47 EG&G S.A. France 26
48 EG&G SpA Italy 22
49 EG&G Technical Services of
West Virginia, Inc. West Virginia 51
50 EG&G Ventures, Inc. Massachusetts 1
51 EG&G Washington Analytical District of Columbia 1
Services Center, Inc.
52 EG&G Watertown, Inc. Massachusetts 73
53 Antarctic Support Associates
(Partnership) Colorado 1 (40%)
54 Benelux Analytical
Instruments S.A. Belgium 1 (92.3%)
55 Berthold Analytical
Instruments, Inc. Delaware 1
56 Berthold A.G. Switzerland 58
57 Berthold France S.A. France 47
58 Berthold GmbH Germany 1
59 Berthold Munchen GmbH Germany 67 (60%)
60 Biozone Oy Finland 83
61 B.A.I. GmbH Austria 58
62 Eagle EG&G Aerospace Co. Ltd. Japan 1 (49%)
63 EC III, Inc. New Mexico 1 (50%)
64 Heimann Optoelectronics GmbH Germany 67
65 Heimann Shenzhen
Optoelectronics Co. Ltd. China 64 (90%)
66 IC Sensors, Inc. California 1
67 Laboratorium Prof. Dr. Rudolf Germany 21 (58.0%) 25 (2.3%)
Berthold GmbH & Co. KG 5 (39.7%)
68 NOK EG&G Optoelectronics
Corporation Japan 1 (49%)
69 Pribori Oy Finland 83
70 PT EG&G Heimann Optoelectronics Indonesia 22
71 Reticon Corporation California 1
72 Reynolds Electrical &
Engineering Co., Inc. Texas 1
73 Rotron Incorporated New York 1
74 Science Support Corporation Delaware 1
75 Sealol Hindustan Limited India 42 (20%)
76 Sealol S.A. Venezuela 42
77 Seiko EG&G Co. Ltd. Japan 1 (49%)
78 Shanghai EG&G Reticon
Optoelectronics Co. Ltd. China 71 (50%)
79 Societe Civile Immobiliere France 1 (82.5%) 57 (17.5%)
80 Vactec, Inc. Missouri 1
81 WALLAC A/S Denmark 83
82 WALLAC Norge AS Norway 83
83 WALLAC Oy Finland 22
84 WALLAC Sverige AB Sweden 83
85 WALLAC, Inc. Maryland 1
86 Wellesley B.V. Netherlands 87
87 Wickford N.V. Netherlands Antillies 26
88 Wright Components, Inc. New York 1
89 ZAO Pribori Russia 69