EXECUTION COPY
Exhibit 99.2
JPMORGAN CHASE BANK, N.A. J.P. MORGAN SECURITIES INC.
270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
January 19, 2005
Thermo Electron Corporation
81 Wyman Street
P.O. Box 9046
Waltham, Massachusetts 02454-9046
Attention of: Mr. Peter M. Wilver
Vice President and Chief Financial Officer
Mr. Kenneth J. Apicerno
Treasurer
Thermo Electron Corporation
$600,000,000 Senior Unsecured Revolving Credit Facility
Commitment Letter
Ladies and Gentlemen:
You have advised JPMorgan Chase Bank, N.A. ("JPMCB") and J.P.
Morgan Securities Inc. ("JPMorgan") that Thermo Electron Corporation, a Delaware
corporation (the "Borrower" or "you"), proposes to acquire (the "Acquisition")
the Kendro Laboratory Products business unit ( the "Acquired Business") of SPX
Corporation, a Delaware corporation (the "Seller"), and that, in connection with
the Acquisition, you desire to establish the senior unsecured revolving credit
facility (the "Facility") described in the Summary of Terms and Conditions
attached as Exhibit A hereto (the "Term Sheet"). Capitalized terms used but not
defined herein have the meanings assigned to them in the Term Sheet.
JPMCB is pleased to advise you of its commitment to provide
the entire principal amount of the Facility upon the terms and subject to the
conditions set forth or referred to in this Commitment Letter and in the Term
Sheet.
You hereby appoint JPMorgan, and JPMorgan hereby agrees to
act, as sole lead arranger and sole bookrunner for the Facility. You hereby
appoint JPMCB, and JPMCB hereby agrees to act, as sole and exclusive
administrative agent for the Facility. In their capacities as lead arranger and
bookrunner and as administrative agent for the Facility, JPMorgan and JPMCB will
perform all functions and exercise all authority
customarily performed and exercised by them in such roles. You further
agree that (i) no other agents, co-agents or arrangers will be appointed and no
other titles will be awarded in connection with the Facility unless you and we
shall so agree and (ii) no compensation (other than as expressly contemplated by
the Term Sheet or the Fee Letter referred to below) will be paid in connection
with the Facility unless you and we so agree.
Although JPMCB and JPMorgan do not currently intend to
commence syndication of the Facility on or immediately after the date hereof,
JPMCB reserves the right, subject to the terms hereof (i) prior to the execution
of definitive documentation for the Facility, to syndicate the Facility to one
or more financial institutions identified by JPMCB in consultation with you and
(ii) after the execution of definitive documentation for the Facility and in
accordance with the terms of such definitive documentation, to transfer portions
of its commitment hereunder to one or more financial institutions that will
become parties to such definitive documentation (JPMCB and the financial
institutions referred to in the immediately preceding clause (i) and this clause
(ii) being collectively referred to as the "Lenders"), in each case pursuant to
a syndication to be managed by JPMorgan. You understand that, upon the
acceptance of the commitment of any Lender to provide a portion of the Facility,
JPMCB will be released from a portion of its commitment in an amount equal to
the commitment of such Lender. You understand that JPMorgan reserves the right
to commence syndication efforts at a time which JPMorgan shall reasonably
determine in consultation with you, and you agree actively to assist JPMorgan in
completing promptly a syndication satisfactory to it and to you. Such assistance
will include (x) direct contact during the syndication between the senior
management and advisors of the Borrower and the proposed Lenders and the
hosting, with JPMorgan, of one or more meetings or conference calls of
prospective Lenders and (y) if requested, and to the extent within your control
after use of commercially reasonable efforts, providing the proposed Lenders
with access to the management and advisors of the Acquired Business in
connection with the syndication of the Facility. You agree that you will use
commercially reasonable efforts to cause JPMorgan's syndication efforts to
benefit from your existing lending and investment banking relationships and that
you will, if requested, assist JPMorgan in the preparation of a Confidential
Information Memorandum and other marketing materials to be used in connection
with the syndication.
As consideration for JPMCB's commitment hereunder and
JPMorgan's and JPMCB's agreement to perform the services described herein, you
agree to pay to JPMCB the nonrefundable fees referred to in the Term Sheet and
in the Fee Letter dated the date hereof and delivered herewith (the "Fee
Letter"). No such fees shall be payable unless definitive documentation for the
Facility is executed and the Acquisition is consummated.
JPMorgan will manage all aspects of the syndication of the
Facility in consultation with you, including decisions as to the selection of
institutions to be approached and when they will be approached, when their
commitments will be accepted, which institutions will participate, the
allocations of the commitments among the Lenders and the amount and distribution
of fees among the Lenders (which shall be subject to your prior agreement unless
such amounts are paid by JPMCB out of the fees payable to
it pursuant to the Fee Letter). To assist JPMorgan in its syndication
efforts, you agree promptly to prepare and provide to JPMorgan and JPMCB all
such information with respect to the Borrower, the Acquired Business and the
other transactions contemplated hereby, including all such financial information
and projections (the "Projections"), as we may reasonably request in connection
with the arrangement and syndication of the Facility. You hereby represent and
covenant that, to the best of your knowledge, (a) all information other than the
Projections (the "Information") that has been or will be made available to JPMCB
or JPMorgan by or on behalf of you or any of your representatives in connection
with the transactions contemplated hereby is or will be, when furnished,
complete and correct in all material respects and does not or will not, when
furnished, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein not
materially misleading in light of the circumstances under which such statements
are made and (b) the Projections prepared by you or your representatives that
have been or will be made available to JPMCB or JPMorgan by or on behalf of you
or any of your representatives have been or will be prepared in good faith based
upon assumptions that are reasonable at the time such Projections were prepared.
You agree that if, at any time from and including the date hereof until the
closing of the Facility, any of the representations in the preceding sentence
would be materially incorrect if the Information and the Projections were being
prepared or furnished, and such representations were being made, at such time,
then you will promptly supplement the Information and the Projections so that
such representations will be correct under those circumstances. You understand
that in arranging and syndicating the Facility we may use and rely on the
Information and the Projections without independent verification thereof.
JPMCB's commitment hereunder and JPMorgan's agreement to
perform the services described herein are subject to (a) there not occurring or
becoming known to us any event or circumstance that has had or would reasonably
be expected to have a material adverse effect on the business, property,
operations or condition (financial or otherwise) of the Borrower and its
subsidiaries (including the Acquired Business), taken as a whole, (b) our not
becoming aware after the date hereof of any information or other matter
affecting the Borrower or the transactions contemplated hereby that is
inconsistent in a material and adverse manner with any such information or other
matter disclosed to us prior to the date hereof, (c) the negotiation, execution
and delivery of definitive credit documentation with respect to the Facility
prepared by counsel to JPMCB and reasonably satisfactory to JPMCB and the
Borrower, (d) JPMorgan's reasonable satisfaction that prior to and during the
syndication of the Facility there shall be no competing concurrent or pending
bank financings or sales of debt securities by or on behalf of the Borrower or
its affiliates that would be likely materially and adversely to affect the
syndication of the Facility and (e) the other conditions set forth or referred
to in the Term Sheet. Those matters that are not covered by the provisions
hereof and of the Term Sheet are subject to the mutual approval and agreement of
JPMCB, JPMorgan and the Borrower, but shall not be inconsistent with the
provisions hereof or the Term Sheet.
You agree (a) to indemnify and hold harmless each of JPMorgan,
JPMCB and their affiliates and their respective officers, directors, employees,
advisors, agents and controlling persons (each, an "indemnified person") from
and against any and all
losses, claims, damages, liabilities and out-of-pocket expenses to which
any such indemnified person may become subject arising out of or in connection
with this Commitment Letter, the Fee Letter, the Term Sheet or the proposed
Acquisition or any related transaction or any claim, litigation, investigation
or proceeding relating to any of the foregoing (including, without limitation,
any such claim, litigation, investigation or proceeding brought by or on behalf
of the Borrower, any of its affiliates or any of their respective officers,
directors, employees, advisors, agents and controlling persons), regardless of
whether any indemnified person is a party thereto, and to reimburse each
indemnified person upon demand for any reasonable legal or other expenses
incurred in connection with investigating or defending any of the foregoing;
provided that the foregoing indemnity will not, as to any indemnified person,
apply to losses, claims, damages, liabilities or related expenses to the extent
they are found by a final, non-appealable judgment of a court to have resulted
from the wilful misconduct or gross negligence of such indemnified person or a
breach by such indemnified person of its obligations under this Commitment
Letter, and (b) to reimburse JPMCB, JPMorgan and their affiliates from time to
time upon request for all reasonable out-of-pocket expenses (including, without
limitation, due diligence expenses, travel and other syndication expenses and
fees, charges and disbursements of counsel for JPMCB and JPMorgan) incurred in
connection with the Facility and any related documentation (including this
Commitment Letter, the Term Sheet, the Fee Letter and the definitive financing
documentation) or the administration, amendment, modification or waiver thereof.
Notwithstanding any other provision of this Commitment Letter, no indemnified
person shall be liable (x) for any damages arising from the use by unauthorized
persons of information communicated through electronic, telecommunications or
other information transmission systems except to the extent that the same
results from the gross negligence or wilful misconduct of such indemnified
person or a breach by such indemnified person of its obligations under this
Commitment Letter, or (y) for any special, indirect, consequential or punitive
damages in connection with the Facility.
Any indemnified person shall promptly notify you in writing of
any claim or action by a third party for which the indemnified person plans to
seek indemnification hereunder; provided that no failure or delay by any
indemnified person to so provide such notice shall relieve you from any
liability or obligation hereunder except to the extent of any material
prejudice, damage or liability caused by or arising out of such failure or
delay. You shall have the right to control in a reasonable manner the defense or
settlement of any such claim or action and to select counsel with respect
thereto, which counsel shall be subject to the approval of the indemnified
person (such approval not to be unreasonably withheld or delayed); provided,
however, that you shall not consent to any settlement or to the entry of any
judgment with respect to such third party claim or action that does not include
a complete release of the indemnified person from all liability with respect
thereto or that imposes any liability or obligation on or requires any admission
of wrongdoing by the indemnified person, in each case without the prior written
consent of the indemnified person. Notwithstanding your right to appoint counsel
to represent the indemnified person in an action, the indemnified person shall
have the right to employ separate counsel (including local counsel) if (i) the
use of counsel chosen by you to represent the indemnified person would present
such counsel with a conflict of interest or (ii) you shall not have employed
counsel satisfactory to the indemnified person
to represent the indemnified person within a reasonable time after notice
of the institution of such claim or action. It is understood that you shall not,
in connection with any claim or action or related claims or actions, be liable
for fees and expenses of more than one such separate counsel for all of the
indemnified persons unless conflicts of interest require the use of separate
counsel by one or more indemnified persons. Notwithstanding any other provision
of this Commitment Letter, nothing shall restrict the right of any indemnified
person to settle or compromise any claim or action for which indemnity would be
otherwise available hereunder on any terms if such indemnified person waives its
right to indemnity from you hereunder in respect of such claim.
This Commitment Letter and JPMCB's commitment hereunder shall
not be assignable by any party without the prior written consent of the other
parties, and any attempted assignment without such consent shall be void;
provided that JPMCB may make assignments in connection with the syndication of
the Facility as described herein. This Commitment Letter may not be amended or
any provision hereof waived or modified except by an instrument in writing
signed by JPMCB, JPMorgan and you. This Commitment Letter may be executed in any
number of counterparts, each of which shall be an original and all of which,
when taken together, shall constitute one agreement. Delivery of an executed
signature page of this Commitment Letter by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this Commitment
Letter. This Commitment Letter is intended to be solely for the benefit of the
parties hereto and is not intended to confer any benefits upon, or create any
rights in favor of, any person other than the parties hereto (and indemnified
persons). This Commitment Letter and the Fee Letter are the only agreements that
have been entered into among us with respect to the Facility and set forth the
entire understanding of the parties with respect thereto. This Commitment Letter
shall be governed by and construed in accordance with the laws of the State of
New York. Any and all obligations of and services to be provided by JPMCB or
JPMorgan hereunder may be performed, and any and all rights of JPMCB or JPMorgan
hereunder may be exercised, by or through their respective affiliates; provided
that JPMCB or JPMorgan, as applicable, shall remain liable for the performance
of such obligations and services.
You agree that you will not disclose, directly or indirectly,
this Commitment Letter, the Fee Letter, the Term Sheet, the contents of any of
the foregoing or the activities of JPMCB or JPMorgan pursuant hereto or thereto
to any person without the prior written approval of JPMCB and JPMorgan, except
that you may disclose this Commitment Letter, the Fee Letter, the Term Sheet and
the contents hereof and thereof (i) to your officers, directors, employees,
attorneys and advisors directly involved in the consideration of this matter on
a confidential basis and (ii) as required by applicable law or compulsory legal
process (in which case you agree to inform us promptly thereof), and except that
after your acceptance of this Commitment Letter and the Fee Letter, you may
disclose this Commitment Letter, the Term Sheet and the contents hereof and
thereof (but not the Fee Letter or the contents thereof) to any person.
You acknowledge that JPMCB and JPMorgan and their affiliates
may be providing debt financing, equity capital or other services (including
financial advisory services) to other companies that have or may in the future
have interests conflicting with
your own interests regarding the transactions described herein and
otherwise. JPMCB and JPMorgan agree that they will not use confidential
information obtained from you in the course of the transactions contemplated
hereby in connection with the performance by JPMCB or JPMorgan of services for
such other companies, and will not furnish any such information to such other
companies. You also acknowledge that JPMCB and JPMorgan have no obligation to
use in connection with the transactions contemplated hereby or to furnish to you
confidential information obtained by JPMCB or JPMorgan from other companies.
Without limiting the foregoing, JPMCB and JPMorgan agree to
keep confidential any information supplied by or on behalf of you, the Acquired
Business or any of your or its respective affiliates in connection with the
transactions contemplated by this Commitment Letter and agree that such
information shall be used solely in connection with the Facility; provided that
nothing herein shall prevent either JPMCB or JPMorgan from disclosing such
information (a) upon the order of any court or administrative agency, or
pursuant to any subpoena or similar legal process, (b) upon the request or
demand of any regulatory authority, (c) which is or becomes publicly available
other than as a result of a disclosure by JPMCB or JPMorgan that is prohibited
by the terms of this paragraph, (d) already in its possession prior to its
disclosure by you or received from a third party after such disclosure by you,
in each case under circumstances not requiring confidentiality, (e) that is
independently developed by JPMCB or JPMorgan or on behalf of either of them
without violating any obligations under this paragraph, (f) to the extent
required by applicable law or required in connection with any judicial,
legislative or regulatory process (it being understood that JPMCB or JPMorgan,
as applicable, shall provide prompt written notice of such requirement to you),
(g) to its and its affiliates' respective directors, officers, employees, agents
(including legal counsel), auditors and professional advisors for use solely in
connection with the Facility (it being understood that the persons to whom such
disclosure is made will be informed of the confidential nature of such
information and will be instructed to keep such information confidential and
that JPMCB or JPMorgan, as applicable, shall be responsible for the compliance
by such persons with the foregoing provision), (h) in connection with the
syndication of the Facility, to any prospective Lender, syndicate member or
participant which agrees to keep such information confidential in accordance
with practices customary in syndications of the type contemplated by this
Commitment Letter and on terms substantially similar to the terms of this
Commitment Letter or on terms otherwise reasonably satisfactory to you, (i) to
the extent you have consented to such disclosure or (j) in protecting and
enforcing its rights under the Fee Letter or this Commitment Letter or with
respect to the Facility.
We hereby notify you that pursuant to the requirements of the
USA Patriot Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001)
(the "Act"), each of us is required to obtain, verify and record information
that identifies you, which information includes your name and address and other
information that will allow us to identify you in accordance with the Act. This
notice is given in accordance with the requirements of the Act and is effective
as to us and each other Lender.
You, JPMCB and JPMorgan (i) irrevocably and unconditionally
submit to the exclusive jurisdiction of any state or Federal court sitting in
the City of New York over any suit, action or proceeding arising out of or
relating to this Commitment Letter, the Fee Letter or the Term Sheet or the
performance of services hereunder or thereunder; (ii) agree that service of any
process, summons, notice or document by registered mail addressed to you, JPMCB
or JPMorgan, as applicable, shall be effective service of process for any such
suit, action or proceeding brought in any such court; (iii) irrevocably and
unconditionally waive any objection to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such suit,
action or proceeding has been brought in any inconvenient forum; (iv) agree that
a final, non-appealable judgment in any such suit, action or proceeding brought
in any such court shall be conclusive and binding upon you, JPMCB or JPMorgan,
as applicable, and may be enforced in any other courts to whose jurisdiction
you, JPMCB or JPMorgan may be subject, by suit upon judgment; and (v)
irrevocably agree to waive trial by jury in any suit, action, proceeding, claim
or counterclaim brought by or on behalf of any party related to or arising out
of this Commitment Letter, the Fee Letter or the Term Sheet or the performance
of services hereunder or thereunder.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance of the terms hereof and of the Term Sheet and the Fee
Letter by returning to us executed counterparts hereof and of the Fee Letter not
later than 5:00 p.m., New York City time, on January 19, 2005, failing which
JPMCB's commitment and the agreements of JPMCB and JPMorgan hereunder will
expire at such time. If the execution of definitive documentation in respect of
the Facility shall not have occurred by one hundred eighty (180) days after the
date hereof (the "Termination Date"), JPMCB's commitment and the agreements of
JPMCB and JPMorgan hereunder shall terminate unless you and we agree to extend
such date; provided, that, without limiting the foregoing in any way, at the
request of any party, you and we shall negotiate in good faith prior to the
Termination Date to extend such date. The reimbursement, indemnification,
jurisdiction and confidentiality provisions contained herein and in the Fee
Letter shall remain in full force and effect regardless of whether definitive
financing documentation shall be executed and delivered and notwithstanding the
termination of this Commitment Letter or JPMCB's commitment hereunder.
[This space left intentionally blank]
JPMCB and JPMorgan are pleased to have the opportunity to
assist you in connection with this very important financing.
Very truly yours,
JPMORGAN CHASE BANK, N.A.,
By: /s/ Dawn Lee Lum
-------------------------
Name: Dawn Lee Lum
Title: Vice President
J.P. MORGAN SECURITIES INC.,
By: /s/ William Carney
-------------------------
Name: William Carney
Title: Vice President
Accepted and agreed to as of the date first written above:
THERMO ELECTRON CORPORATION,
By: /s/ Kenneth J. Apicerno
--------------------------
Name: Kenneth J. Apicerno
Title: Treasurer
CONFIDENTIAL
January 19, 2005
Thermo Electron Corporation
Summary of Terms and Conditions
$600,000,000 Senior Unsecured Revolving Credit Facility
Borrower: Thermo Electron Corporation, a Delaware
corporation (the "Borrower").
Acquisition: The Borrower intends to acquire (the
"Acquisition") the Kendro Laboratory Products
business unit (the "Acquired Business") of SPX
Corporation, a Delaware corporation (the
"Seller"), for cash.
Sole Lead Arranger J.P. Morgan Securities Inc. ("JPMorgan").
and Sole Bookrunner:
Administrative Agent: JPMorgan Chase Bank, N.A. ("JPMCB") will serve
as the sole administrative agent (in such
capacity, the "Agent") for a syndicate of
financial institutions arranged by JPMorgan
(the "Lenders").
Facility: A 364-day senior unsecured revolving credit
facility providing for US Dollar loans to the
Borrower in a principal amount of $600,000,000,
which amount will be reduced as described in
"Mandatory Commitment Reductions and
Prepayments" below if any events referred to in
such section occur prior to the date of
execution of definitive credit documentation
for the Facility and the closing of the
Acquisition (the "Closing Date").
Purpose: The proceeds of the loans under the Facility
will be used to pay the cash consideration for
the Acquired Business and other expenses
relating to the Acquisition, whether paid
directly by the Borrower or by subsidiaries of
the Borrower to whom the Borrower has made
intercompany loans.
Availability: Up to the full amount of the Facility may be
borrowed, repaid and reborrowed during the life
of the Facility.
Fees and Interest Rates: As per attached Annex I.
Maturity: The commitments under the Facility will
terminate and the borrowings under the Facility
will mature on the date that is 364 days after
the Closing Date.
Mandatory Commitment
Reductions and Prepayments: Commitments under the Facility will be reduced
and borrowings will be prepaid with the net
proceeds of (a) all issuances and sales of
bonds, notes, debentures or similar instruments
or other incurrences of indebtedness for
borrowed money by the Borrower or any
subsidiary (other than (i) limited indebtedness
to be agreed upon and (ii) advances under the
Borrower's Five-Year Credit Agreement dated as
of December 17, 2004 (the "Existing Credit
Agreement")), (b) all sales of assets acquired
as part of the Acquisition or sales of assets
required by or otherwise made in connection
with the Acquisition, in each case by the
Borrower or any subsidiary and (c) all equity
issuances by the Borrower or any subsidiary
(other than to the Borrower or any subsidiary).
Voluntary Prepayments/ Voluntary prepayments of borrowings under the
Reductions in Commitments: Facility and voluntary reductions of the
unutilized portion of the Facility commitments
will be permitted at any time, in a minimum
principal amount of $5,000,000, without premium
or penalty, subject to reimbursement of the
Lenders' redeployment costs in the case of a
prepayment of Adjusted LIBOR borrowings other
than on the last day of the relevant interest
period.
Documentation: A credit agreement containing representations
and warranties, affirmative and negative
covenants, events of default and conditions
that are the same as those in the Existing
Credit Agreement, except as set forth herein or
otherwise appropriate in the reasonable
judgment of the Agent and the Borrower to
address the Acquisition and the use of the
proceeds of the Facility.
Representations and Warranties: The same as the representations and warranties
contained in the Existing Credit Agreement
(financial statements; no material adverse
change (as of the date of the initial borrowing
only); existence; compliance with laws; power,
authorization and enforceability; no
contravention; litigation; ownership of
property; liens; taxes; compliance with federal
regulations; ERISA; inapplicability of the
Investment Company Act and other regulations;
use of proceeds; environmental matters; and
accuracy of information), and as otherwise
appropriate in the reasonable judgment of the
Agent and the Borrower to address the
Acquisition and the use of the proceeds of the
Facility, including an acknowledgement of the
status of obligations under the Facility as
senior indebtedness in respect of subordinated
indebtedness.
Conditions Precedent to
Effectiveness: 1. Execution and delivery of definitive
financing documentation; payment of fees and
expenses; delivery of satisfactory evidence of
authority and legal opinions; accuracy of
representations and warranties; absence of
defaults.
2. The execution of definitive credit
documentation for the Facility will occur
immediately prior to the closing of the
Acquisition. The definitive documentation
relating to the Acquisition (the "Acquisition
Documents") shall be in full force and effect,
and no material term or condition of any
Acquisition Document shall have been modified
or waived in any material respect without the
Agent's consent. The Acquisition shall be
consummated (a) concurrently with the making of
any initial loans under the Facility and (b)
except as provided above, in accordance with
the Acquisition Documents.
3. (a) All governmental, regulatory and other
third party approvals necessary in connection
with the Acquisition and the financing
contemplated hereby, the failure of which to be
obtained or to be in full force and effect
would reasonably be expected to have a
material adverse effect on the Borrower and its
subsidiaries
(including the Acquired Business), taken as a
whole, or the rights or interests of the
Lenders with respect to the Facility, shall
have been obtained and be in full force and
effect and (b) all applicable waiting periods
with respect to the effectiveness of such
approvals shall have expired.
4. All consents, waivers and amendments that
are necessary to ensure that none of the
Facility, the Acquisition or any related
transaction will contravene or constitute a
default under any material contract to which
the Borrower or any of its subsidiaries is
party (which default would reasonably be
expected to have a material adverse effect on
the Borrower and its subsidiaries (including
the Acquired Business), taken as a whole, or
the rights or interests of the Lenders with
respect to the Facility) shall have been
obtained and shall be in full force and effect.
Conditions Precedent to All
Borrowings: Delivery of notice, accuracy of representations
and warranties (except, in the case of
borrowings after the initial borrowing, the
material adverse change representation) and
absence of defaults.
Affirmative Covenants: The same as the affirmative covenants contained
in the Existing Credit Agreement (delivery of
financial statements; delivery of certificates
and information; payment of obligations;
maintenance of corporate existence and
compliance with contractual obligations and
laws; maintenance of properties in good working
order; maintenance of satisfactory insurance;
access to property, books and records and
officers and employees; delivery of notices of
defaults, litigation, ERISA events and material
adverse changes and compliance with
environmental laws), and as otherwise
appropriate in the reasonable judgment of the
Agent and the Borrower to address the
Acquisition and the use of the proceeds of the
Facility.
Negative Covenants: The same as the negative covenants contained in
the Existing Credit Agreement (standby and
performance letters of credit; indebtedness of
subsidiaries; liens; mergers and other
fundamental changes; dispositions of property;
investments; transactions with affiliates;
changes in fiscal periods; lines of business;
and use of proceeds), and as otherwise
appropriate in the reasonable judgment of the
Agent and the Borrower to address the
Acquisition and the use of the proceeds of the
Facility, including a prohibition on subsidiary
guarantees supporting indebtedness under the
Existing Credit Agreement unless such
guarantees also support indebtedness under the
Facility.
Financial Covenants: 1. minimum ratio (3.25 to 1.00) of
consolidated EBITDA to consolidated interest
expense for any four consecutive fiscal
quarters; and
2. maximum ratio (0.50 to 1.00) of consolidated
total debt to consolidated total capitalization
at the end of any fiscal quarter.
Events of Default: The same as the events of default contained in
the Existing Credit Agreement (payment
defaults; representations and warranties
incorrect when made or deemed made; covenant
defaults; cross-payment-default to, and other
events permitting acceleration of, material
indebtedness; bankruptcy and insolvency; ERISA;
judgments; and change in control, in each case
with the same grace periods, if any), and as
otherwise appropriate in the reasonable
judgment of the Agent and the Borrower to
address the Acquisition and the use of the
proceeds of the Facility.
Yield Protection: The same as the yield protection contained in
the Existing Credit Agreement, including
provisions: (i) protecting the Lenders against
increased costs or loss of yield resulting from
changes in reserve, tax, capital adequacy and
other requirements of law and from the
imposition of or changes in withholding or
other taxes and (ii) indemnifying the Lenders
for "breakage costs" incurred in connection
with, among other things, any prepayment of a
LIBOR loan on a day other than the last day of
an interest period with respect thereto.
Voting: Amendments and waivers will require the
approval of the Borrower and Lenders holding
more than 50% of the aggregate amount of the
loans and commitments under the Facility,
except that (a) the consent of each Lender
affected thereby shall be required with respect
to (i) increases in commitments, (ii)
reductions of principal, interest or fees and
(iii) extensions of final maturity and (b) the
consent of 100% of the Lenders shall be
required with respect to modifications to any
of the voting percentages.
Assignments and Participations: The Lenders will be permitted to assign all or
a portion of their loans and commitments with
the consent of (a) the Borrower (unless an
event of default has occurred and is continuing
or such assignment is to a Lender) and (b) the
Administrative Agent, in each case not to be
unreasonably withheld. Each assignment (except
to other Lenders or their affiliates) will be
in a minimum amount of $5,000,000, unless
otherwise agreed by the Borrower (unless an
event of default has occurred and is
continuing) and the Administrative Agent. The
Administrative Agent will receive a processing
and recordation fee of $3,500, payable by the
assignor and/or the assignee, with each
assignment.
The Lenders will be permitted to participate
loans and commitments without restriction.
Voting rights of participants shall be limited
to matters in respect of (a) increases in
commitments, (b) reductions of principal,
interest or fees and (c) extensions of final
maturity.
Expenses and Indemnification: All reasonable out-of-pocket expenses of the
Agent and its affiliates associated with the
syndication of the Facility and the
preparation, execution, delivery,
administration, waiver or modification and
enforcement of the documentation contemplated
hereby (including the reasonable fees,
disbursements and other charges of counsel) are
to be paid by the Borrower. In addition, all
out-of-pocket expenses of the Agent and any
Lender (including the fees, disbursements and
other charges of counsel) for
enforcement costs and documentary taxes
associated with the Facility are to be paid by
the Borrower.
The Borrower will indemnify the Agent and the
Lenders and their officers, directors, agents,
controlling persons and affiliates and hold
them harmless from and against all costs,
expenses (including reasonable fees,
disbursements and other charges of counsel) and
liabilities of any such indemnified person
arising out of or relating to the Facility or
any transaction contemplated hereby; provided
that such indemnity shall not, as to any
indemnitee, be available to the extent that
such costs, expenses and liabilities are
determined by a court of competent jurisdiction
by final and nonappealable judgment to have
resulted from its own gross negligence or
willful misconduct.
Governing Law and Forum: New York.
Counsel to JPMorgan and JPMCB: Cravath, Swaine & Moore LLP.
ANNEX I
to Exhibit A
Interest Rates: (i) Adjusted LIBOR plus 0.40% or (ii) ABR.
The Borrower may elect interest periods of 1,
2, 3 or 6 months for Adjusted LIBOR borrowings.
Calculation of interest shall be on the basis
of actual days elapsed in a year of 360 days
(or 365 or 366 days, as applicable, in the case
of ABR loans based on the Prime Rate) and
interest shall be payable at the end of each
interest period and, in any event, at least
every 3 months.
ABR is the Alternate Base Rate, which is the
higher of JPMCB's Prime Rate and the Federal
Funds Effective Rate plus 1/2 of 1.00%.
Adjusted LIBOR will at all times include
statutory reserves.
Facility Fee: A facility fee of 0.10% per annum will accrue
on the aggregate amount of the Facility,
whether used or unused, commencing on the
Closing Date and payable quarterly in arrears
thereafter and upon the termination of the
Lenders' commitments and the repayment of all
amounts outstanding under the Facility.
Default Rate: With respect to overdue principal, the
applicable interest rate plus 2.00% per annum
and, with respect to any other overdue amount,
ABR plus 2.00% per annum.