EXECUTION COPY
CREDIT AGREEMENT
among
TIME WARNER INC.,
The Several Lenders
from Time to Time Parties Hereto
and
CHEMICAL BANK,
as Administrative Agent
Dated as of May 23, 1996
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . .1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . .1
1.2 Other Definitional Provisions. . . . . . . . . . . 17
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS. . . . . . . . . . 18
2.1 Revolving Credit Commitments . . . . . . . . . . . 18
2.2 Procedure for Borrowing. . . . . . . . . . . . . . 19
2.3 Commitment and Other Fees. . . . . . . . . . . . . 19
2.4 Termination or Reduction of Commitments. . . . . . 20
2.5 Repayment of Loans; Evidence of Debt; Limited
Recourse . . . . . . . . . . . . . . . . . . . . 20
2.6 Optional and Mandatory Prepayments . . . . . . . . 21
2.7 Conversion and Continuation Options. . . . . . . . 23
2.8 Minimum Amounts and Maximum Number of Tranches . . 23
2.9 Interest Rates and Payment Dates . . . . . . . . . 24
2.10 Computation of Interest and Fees . . . . . . . . . 24
2.11 Inability to Determine Interest Rate . . . . . . . 25
2.12 Pro Rata Treatment and Payments. . . . . . . . . . 25
2.13 Illegality . . . . . . . . . . . . . . . . . . . . 26
2.14 Requirements of Law. . . . . . . . . . . . . . . . 26
2.15 Taxes. . . . . . . . . . . . . . . . . . . . . . . 28
2.16 Indemnity. . . . . . . . . . . . . . . . . . . . . 30
2.17 Change of Lending Office . . . . . . . . . . . . . 30
2.18 Replacement of Lenders under Certain
Circumstances. . . . . . . . . . . . . . . . . . 30
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 31
3.1 Financial Condition. . . . . . . . . . . . . . . . 31
3.2 No Change. . . . . . . . . . . . . . . . . . . . . 32
3.3 Corporate Existence; Compliance with Law . . . . . 32
3.4 Corporate Power; Authorization; Enforceable
Obligations. . . . . . . . . . . . . . . . . . . 32
3.5 No Legal Bar . . . . . . . . . . . . . . . . . . . 33
3.6 No Material Litigation . . . . . . . . . . . . . . 33
3.7 No Default . . . . . . . . . . . . . . . . . . . . 33
3.8 Ownership of Property; Liens . . . . . . . . . . . 33
3.9 Intellectual Property. . . . . . . . . . . . . . . 33
3.10 No Burdensome Restrictions . . . . . . . . . . . . 34
3.11 Taxes. . . . . . . . . . . . . . . . . . . . . . . 34
3.12 Federal Regulations. . . . . . . . . . . . . . . . 34
3.13 ERISA. . . . . . . . . . . . . . . . . . . . . . . 34
3.14 Investment Company Act; Other Regulations. . . . . 35
3.15 Purpose of Loans . . . . . . . . . . . . . . . . . 35
3.16 Environmental Matters. . . . . . . . . . . . . . . 35
3.17 Escrowed Stock . . . . . . . . . . . . . . . . . . 36
-i-
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . 37
4.1 Conditions to Initial Loans. . . . . . . . . . . . 37
4.2 Conditions to Each Loan. . . . . . . . . . . . . . 39
SECTION 5. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . 39
5.1 Financial Statements . . . . . . . . . . . . . . . 40
5.2 Certificates; Other Information. . . . . . . . . . 40
5.3 Payment of Obligations . . . . . . . . . . . . . . 41
5.4 Maintenance of Existence . . . . . . . . . . . . . 41
5.5 Maintenance of Property; Insurance . . . . . . . . 42
5.6 Inspection of Property; Books and Records;
Discussions. . . . . . . . . . . . . . . . . . . 42
5.7 Notices. . . . . . . . . . . . . . . . . . . . . . 42
5.8 Environmental Laws . . . . . . . . . . . . . . . . 43
5.9 Maintenance of Escrow Agreement; Compliance with
Ratios; Undertakings to Deliver Common Stock . . 43
5.10 Directions to Escrow Agent; Release of Escrowed
Stock. . . . . . . . . . . . . . . . . . . . . . 45
5.11 Stock Option Plans . . . . . . . . . . . . . . . . 46
SECTION 6. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . 46
6.1 Limitation on Liens. . . . . . . . . . . . . . . . 47
6.2 Limitation on Fundamental Changes. . . . . . . . . 47
6.3 Limitation on Sale of Assets . . . . . . . . . . . 47
SECTION 7. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . 47
7.1 Events of Default. . . . . . . . . . . . . . . . . 47
7.2 Special Remedy . . . . . . . . . . . . . . . . . . 50
SECTION 8. THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . 50
8.1 Appointment. . . . . . . . . . . . . . . . . . . . 50
8.2 Delegation of Duties . . . . . . . . . . . . . . . 50
8.3 Exculpatory Provisions . . . . . . . . . . . . . . 50
8.4 Reliance by Administrative Agent . . . . . . . . . 51
8.5 Notice of Default. . . . . . . . . . . . . . . . . 51
8.6 Non-Reliance on Administrative Agent and Other
Lenders. . . . . . . . . . . . . . . . . . . . . 52
8.7 Indemnification. . . . . . . . . . . . . . . . . . 52
8.8 Administrative Agent in Its Individual Capacity. . 53
8.9 Successor Administrative Agent . . . . . . . . . . 53
SECTION 9. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 53
9.1 Amendments and Waivers . . . . . . . . . . . . . . 53
9.2 Notices. . . . . . . . . . . . . . . . . . . . . . 54
9.3 No Waiver; Cumulative Remedies . . . . . . . . . . 55
9.4 Survival of Representations and Warranties . . . . 55
9.5 Payment of Expenses and Taxes. . . . . . . . . . . 55
9.6 Successors and Assigns; Participations and
Assignments. . . . . . . . . . . . . . . . . . . 56
9.7 Consent to Assignment to TW Inc. . . . . . . . . . 59
-ii-
9.8 Adjustments to Number of Shares of Common Stock
and Stock Price. . . . . . . . . . . . . . . . . 60
9.9 Adjustments; Set-off . . . . . . . . . . . . . . . 60
9.10 Counterparts . . . . . . . . . . . . . . . . . . . 61
9.11 Severability . . . . . . . . . . . . . . . . . . . 61
9.12 Integration. . . . . . . . . . . . . . . . . . . . 61
9.13 GOVERNING LAW. . . . . . . . . . . . . . . . . . . 62
9.14 Submission To Jurisdiction; Waivers. . . . . . . . 62
9.15 Acknowledgements . . . . . . . . . . . . . . . . . 62
9.16 WAIVERS OF JURY TRIAL. . . . . . . . . . . . . . . 63
SECTION 10. PROCEDURES TO INCREASE BASE COMMITMENT . . . . . . 63
10.1 Increase in Base Maximum Commitment Amount . . . . 63
10.2 Individual Lender Responsibility . . . . . . . . . 64
SCHEDULES
Schedule I Commitments; Addresses for Notices
Schedule II List of Options
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Escrow Agreement
Exhibit C Borrowing Certificate
Exhibit D-1 Form of Opinion of Cravath, Swaine & Moore, counsel
to the Borrower
Exhibit D-2 Form of Opinion of Peter R. Haje, Esq., general
counsel of the Borrower
Exhibit E Form of Borrowing Base Certificate
Exhibit F Form of Assignment and Acceptance
-iii-
CREDIT AGREEMENT, dated as of May 23, 1996 among TIME
WARNER INC., a Delaware corporation (together with its successors
and permitted assigns, the "Borrower", except that after the
assumption provided for in subsection 9.7, the "Borrower" shall
mean TW Inc. and its successors and permitted assigns), the
several banks and other financial institutions from time to time
parties to this Agreement (collectively, the "Lenders") and
Chemical Bank, a New York banking corporation, as administrative
agent for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lenders
extend a revolving credit facility to the Borrower in an
aggregate principal amount up to $750,000,000; and
WHEREAS, the Lenders have indicated their willingness
to extend such a facility to the Borrower on the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants hereinafter set forth, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b)
the Base CD Rate in effect on such day plus 1% and (c) the
Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to
time by Chemical as its prime rate in effect at its
principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by
Chemical in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the
product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator
of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate; "Three-Month Secondary CD Rate" shall
mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board of Governors of the
Federal Reserve System (the "Board") through the public
information telephone line of the Federal Reserve Bank of
New York (which rate will, under the current practices of
the Board, be published in Federal Reserve Statistical
2
Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of
major money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day
(or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from
three New York City negotiable certificate of deposit
dealers of recognized standing selected by it; and "Federal
Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a
Business Day, the average 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. Any change in the ABR due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable
to which is based upon the ABR.
"Administrative Agent": Chemical, together with its
affiliates, as the arranger of the Commitments and as the
agent for the Lenders under this Agreement and the other
Loan Documents.
"Affiliate": as to any Person, any other Person
(other than a Subsidiary) which, directly or indirectly, is
in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract
or otherwise.
"Aggregate Loan Value": when used in reference to
Escrowed Stock and to Options, means the aggregate Loan
Value thereof determined (i) in the case of Escrowed Stock,
based upon the aggregate amount thereof in the Escrow
Account at the close of business on the Business Day
3
immediately preceding the relevant Valuation Date and based
upon the Loan Value thereof as of the Trading Day
immediately preceding such Valuation Date and (ii) in the
case of Options, based upon the unexercised Options as of
the close of business on the last Business Day of the week
immediately preceding the relevant Valuation Date, provided
that whether or not such Options are "in the money" and
vested shall be determined as of, and based upon the Loan
Value of the Common Stock as of, the Trading Day immediately
preceding such Valuation Date.
"Agreement": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Margin": 0.75% per annum.
"Assignee": as defined in subsection 9.6(c).
"Available Commitment": as to any Lender at any
time, an amount equal to the excess, if any, of (a) the
amount of such Lender's Commitment over (b) the aggregate
principal amount of all Loans made by such Lender then
outstanding.
"Base Maximum Commitment Amount": at any date of
determination an amount equal to the excess, if any, of the
Maximum Commitment Amount over the aggregate Notional
Reduction Amounts for all Trigger Events occurring on or
prior to such date as such amount may be increased pursuant
to subsection 10.1.
"Borrower": as defined in the preamble to this
Agreement.
"Borrowing Base Calculation": the calculation of the
Ratios pursuant to subsections 2.1(a)(1) and (2).
"Borrowing Base Certificate": as defined in
subsection 5.2(c).
"Borrowing Date": any Business Day specified in a
notice pursuant to subsection 2.2 as a date on which the
Borrower requests the Lenders to make Loans hereunder.
"Business": as defined in subsection 3.16(b).
"Business Day": a day other than a Saturday, Sunday
or other day on which commercial banks in New York City are
authorized or required by law to close and, with respect to
any Eurodollar Loan, a day on which dealings in foreign
currencies and exchange between banks may be carried on in
London, England.
4
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the
foregoing.
"C/D Assessment Rate": for any day as applied to any
ABR Loan, the annual assessment rate in effect on such day
which is payable by a member of the Bank Insurance Fund
maintained by the Federal Deposit Insurance Corporation (the
"FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor
assessment risk classification) within the meaning of 12
C.F.R. section 327.4 (or any successor provision) to the FDIC (or
any successor) for the FDIC's (or such successor's) insuring
time deposits at offices of such institution in the United
States.
"C/D Reserve Percentage": for any day as applied to
any ABR Loan, that percentage (expressed as a decimal) which
is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor)
(the "Board"), for determining the maximum reserve
requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal
time deposits in Dollars having a maturity of 30 days or
more.
"Change in Law": (a) the adoption of any law, rule
or regulation after the date of this Agreement, (b) any
change in any law, rule or regulation or in the
interpretation or application thereof after the date of this
Agreement or (c) compliance by any Lender or the
Administrative Agent with any request, guideline or
directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.
"Chemical": Chemical Bank.
"Closing Date": the date on which the conditions
precedent set forth in subsection 4.1 shall be satisfied and
the initial Loans shall have been made hereunder.
"Closing Date Margin Requirement": Common Stock with
an Aggregate Loan Value equal to two times the Maximum
Commitment Amount on the Closing Date.
"Code": the Internal Revenue Code of 1986, as
amended from time to time.
5
"Commitment": as to any Lender, the obligation of
such Lender to make Loans to the Borrower hereunder in an
aggregate principal amount at any one time outstanding not
to exceed the amount set forth opposite such Lender's name
on Schedule I, as such amount may be reduced from time to
time in accordance with the provisions of this Agreement.
"Commitment Percentage": as to any Lender at any
time, the percentage which such Lender's Commitment then
constitutes of the Maximum Commitment Amount (or, at any
time after the Commitments shall have expired or terminated,
the percentage which the aggregate principal amount of such
Lender's Loans then outstanding constitutes of the aggregate
principal amount of the Loans then outstanding).
"Commitment Period": the period from and including
the date hereof to but not including the Termination Date or
such earlier date on which the Commitments shall terminate
as provided herein.
"Common Stock": the shares of common stock of the
Borrower, as such may be modified pursuant to subsection 9.8.
"Commonly Controlled Entity": an entity, whether or
not incorporated, which is under common control with the
Borrower within the meaning of Section 4001 of ERISA or is
part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Compliance Ratio Period": any period during the
Commitment Period commencing with the Valuation Date on
which the ratio of (x) the Aggregate Loan Value of the
Escrowed Stock to (y) the Covered Amount (calculated as of
the close of business on the Business Day immediately
preceding such Valuation Date and after giving effect to any
requested borrowing and any prepayment hereunder to be made
on such Valuation Date), is greater than 1.70 to 1, as set
forth in the Borrowing Base Certificate delivered in respect
of such Valuation Date and ending on the earlier of (a) the
date on which a Default or Event of Default shall have
occurred and (b) the Business Day immediately succeeding the
Valuation Date on which the ratio of (x) the Aggregate Loan
Value of the Escrowed Stock to (y) the Covered Amount
(calculated as of the close of business on the Business Day
immediately preceding such Valuation Date and after giving
effect to any requested borrowing and any prepayment
hereunder to be made on such Valuation Date), is equal to or
less than 1.70 to 1, as set forth in the Borrowing Base
Certificate delivered in respect of such Valuation Date.
6
"Consolidated Amortization Expense": for any period,
for any Person, the amortization expense of such Person and
its consolidated Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
"Consolidated Cash Flow": for any period, for any
Person, (a) the Consolidated Net Income of such Person for
such period, plus (b) to the extent deducted in calculating
Consolidated Net Income of such Person for such Period, the
sum of (without duplication) (i) Consolidated Depreciation
Expense, (ii) Consolidated Amortization Expense, (iii)
Consolidated Interest Expense, (iv) income tax expense of
such Person and its Subsidiaries, each as determined in
accordance with GAAP after eliminating all intercompany
items and (v) non-recurring non-cash items, minus (c) to the
extent included in calculating Consolidated Net Income of
such Person for such period, interest income, all as
determined on a consolidated basis for such Person and its
Subsidiaries in accordance with GAAP.
"Consolidated Depreciation Expense": for any period,
for any Person, the depreciation expense of such Person and
its consolidated Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense": for any period, for
any Person, the interest expense of such Person and its
consolidated Subsidiaries, including, without duplication,
total interest expense for such period (including that
attributable to Financing Leases in accordance with GAAP)
with respect to all outstanding Indebtedness of such Person
and its consolidated Subsidiaries, including all capitalized
interest, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers'
acceptance financing, as such amount may be increased or
decreased by the net income or loss from Interest Rate
Agreements for such period determined in accordance with
GAAP, determined on a consolidated basis in accordance with
GAAP, all determined on a consolidate basis for such period
taken as a single accounting period.
"Consolidated Net Income": for any period, for any
Person, the net income (or loss) of such Person and its
Subsidiaries on a consolidated basis for such period taken
as a single accounting period determined in conformity with
GAAP; provided, however, that the following, without
duplication, shall be excluded: (a) the income (or loss) of
any Person that is not a Subsidiary of such Person and in
which any other Person (other than such Person or any of its
Subsidiaries) has a joint interest; (b) the income (or loss)
7
of any Person accrued prior to the date it becomes a
Subsidiary of such Person or is merged into or consolidated
with such Person or any of its Subsidiaries or such Person's
assets are acquired by such Person or any of its
Subsidiaries; (c) any income of any Subsidiary of such
Person to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary of
such income is not at the time permitted by operation of the
terms of its charter or any agreement or instrument,
judgment, decree, order, statute, rule or governmental
regulation applicable to such Subsidiary, (d) dividends,
interest, income or other distributions or payments on any
investment in or with respect to any Person which is not a
Subsidiary of such Person, (e) the income (or loss) realized
by such Person or any of its Subsidiaries from dispositions
of assets other than in the ordinary course of business
(including as the result of the sale of any business assets,
business segment or business operations), (f) the income
resulting from any write-up of any asset, (g) the aggregate
net gain (or loss) during such period arising from any
revaluation (but not sale) of readily marketable securities,
(h) the aggregate net gain (or loss) during such period
arising from extraordinary transactions and (i) the income
(or loss) from discontinued operations.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its property is
bound.
"Covered Amount": as defined in subsection 2.1.
"Current Reg. U Loan Value": as of any date of
determination thereof, is an amount equal to 50% of the
Aggregate Loan Value of the Escrowed Stock determined as of
the Trading Day preceding the date of such determination.
"Default": any of the events specified in
subsection 7.1, whether or not any requirement for the
giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Disclosure Documents": as to the Borrower, all
filings made with the Securities and Exchange Commission
pursuant to Section 13(a) of the Securities Exchange Act of
1934 since January 1, 1996 and on or prior to the Closing
Date.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
8
"Environmental Laws": any and all foreign, Federal,
state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of
human health or the environment, as now or may at any time
hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Escrow Account": shall mean the account established
by the Escrow Agent to hold the Escrowed Stock.
"Escrow Agent": The Bank of New York, a New York
banking institution, and its successors as Escrow Agent
under the Escrow Agreement.
"Escrow Agreement": the Escrow Agreement to be
executed and delivered by the Borrower, the Escrow Agent and
the Administrative Agent, substantially in the form of
Exhibit B, as the same may be amended, supplemented or
otherwise modified from time to time.
"Escrowed Stock": at any date of determination,
Common Stock held by the Escrow Agent pursuant to the Escrow
Agreement at such date.
"Eurocurrency Reserve Requirements": for any day as
applied to a Eurodollar Loan, the aggregate (without
duplication) of the rates (expressed as a decimal fraction)
of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of
Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar Loan,
the rate per annum equal to the rate at which Chemical is
offered Dollar deposits at or about 10:00 A.M., New York
City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for
9
delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable
to the amount of its Eurodollar Loan to be outstanding
during such Interest Period.
"Eurodollar Loans": Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, a rate
per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in
subsection 7.1, provided that any requirement for the giving
of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Excluded Taxes": shall mean, with respect to the
Administrative Agent, any Lender or any other recipient of
any payment to be made by or on account of any obligation of
the Borrower hereunder (a) income or franchise taxes imposed
on (or measured by) its net income by the jurisdiction under
the laws of which it is organized, or the jurisdiction in
which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located,
(b) any branch profits or similar tax imposed by the United
States if such Lender's applicable lending office is located
in the United States and (c) in the case of a Foreign
Lender, any U.S. withholding tax imposed on amounts payable
to such Foreign Lender under this Agreement because of its
failure or inability to comply with subsection 2.15(d),
unless (and to the extent that) (i) such withholding tax
liability arises or is increased by reason of a Change in
Law occurring after such Foreign Lender becomes a Lender
under this Agreement or (ii) such Foreign Lender's assignor
(if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such
withholding tax liability pursuant to subsection 2.15(a).
"Federal Funds Effective Rate": as defined in the
definition of "ABR" contained in this subsection.
"Financing Lease": any lease of property, real or
personal, the obligations of the lessee in respect of which
are required in accordance with GAAP to be capitalized on a
balance sheet of such lessee.
10
"Foreign Lender": with respect to any Loan, shall
mean any Lender making such Loan that is organized under the
laws of a jurisdiction other than the United States.
"GAAP": generally accepted accounting principles in
the United States of America in effect from time to time.
"Governmental Authority": any nation or government,
any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a) the
guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third
Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency
of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or
11
determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of
business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which
is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under
Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of
such Person and (e) all liabilities secured by any Lien on
any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment
thereof.
"Insolvency": with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within the
meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of
Insolvency.
"Interest Component": at any date of determination,
shall mean three months interest on the Loans calculated
using the weighted average interest rate then applicable to
the Loans at such date (after giving effect to any requested
borrowing hereunder and using, for any such requested
borrowing, the Borrower's estimate of the interest rate to
be applicable thereto).
"Interest Payment Date": (a) as to any ABR Loan, the
last day of each March, June, September and December, (b) as
to any Eurodollar Loan having an Interest Period of three
months or less, the last day of such Interest Period, and
(c) as to any Eurodollar Loan having an Interest Period
longer than three months, each day which is three months, or
a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar
Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one,
two, three or six months thereafter, as selected by
the Borrower in its notice of borrowing or notice of
12
conversion, as the case may be, given with respect
thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not
less than three Business Days prior to the last day
of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding
Business Day unless the result of such extension
would be to carry such Interest Period into another
calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend
beyond the Termination Date shall end on the
Termination Date; and
(3) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in
the calendar month at the end of such Interest
Period) shall end on the last Business Day of a
calendar month.
"Interest Rate Agreement": any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement, interest rate futures contract, interest rate
option contract or other similar agreement or arrangement
designed to manage the exposure of a Person to or any of its
Subsidiaries to fluctuating interest rates.
"Interest Sublimit": when the Maximum Commitment
Amount is:
(A) $600,000,000 or more, $100,000,000;
(B) less than $600,000,000 but equal to or more
than $400,000,000, $75,000,000;
(C) less than $400,000,000 but equal to or more
than $200,000,000, $50,000,000; and
13
(D) less than $200,000,000, $25,000,000.
"Lenders": as defined in the preamble to this
Agreement.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or
any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or
other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the
foregoing).
"Loan": as defined in subsection 2.1.
"Loan Documents": this Agreement, any Notes and the
Escrow Agreement.
"Loan Value": when used in reference to Common
Stock, means the current market price per share of the
Common Stock as of the Trading Day immediately preceding the
relevant Valuation Date and based upon the aggregate amount
of Escrowed Stock in the Escrow Account as of the Business
Day immediately preceding such Valuation Date; when used in
reference to Options, means the exercise price of
unexercised vested Options that are "in the money"
determined (x) with respect to the existence of unexercised
Options, as of the close of business on the last Business
Day of the week immediately preceding the relevant Valuation
Date, (y) with respect to whether or not such Options are
"in the money", based on the Loan Value of the Common Stock
as of the Trading Day immediately preceding such Valuation
Date and (z) with respect to whether or not such Options are
vested, as of the close of business on the Trading Day
immediately preceding such Valuation Date. The current
market price per share on (a) any Trading Day, shall be
deemed to be the reported last sale price for any such
Trading Day and (b) any other date, shall be deemed to be
the reported last sale price for the Trading Day before the
date in question. The reported last sales price for each
day shall be the reported last sales price, regular way, or,
in case no sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange
Composite Tape or, if such security is not listed or
admitted to trading on the New York Stock Exchange at such
time, on the principal national securities exchange on which
such security is listed or admitted to trading or, if not
14
listed or admitted to trading on any national securities
exchange, on the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or, if such security is not quoted on such
National Market System, the average of the closing bid and
asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the
security on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices for
such date as furnished by any New York Stock Exchange member
firm regularly making a market in such security selected for
such purpose by the Board of Directors of the Borrower or a
committee thereof or, if no such quotations are available,
the fair market value of such Common Stock as determined by
a New York Stock Exchange member firm regularly making a
market in the Common Stock selected for such purpose by the
Board of Directors of the Borrower or a committee thereof.
"Majority Lenders": at any time, Lenders the
Commitment Percentages of which aggregate more than 50%.
"Material Adverse Effect": a material adverse effect
on (a) the business, results of operations, condition
(financial or otherwise), properties or liabilities of the
Borrower and its Subsidiaries taken as a whole or (b) the
rights or remedies of the Administrative Agent or the
Lenders or the ability of the Borrower to perform its
obligations to the Administrative Agent or the Lenders under
any Loan Document.
"Material Subsidiary": of any Person, shall mean
each Subsidiary of such Person which, either alone or
together with the Subsidiaries of such Subsidiary, meets any
of the following conditions:
(i) the investments of such Person and its
Subsidiaries in, or their proportionate share
(based on their equity interests) of the fair
value or book value of the total assets (after
intercompany eliminations) of, the Subsidiary in
question exceeds 5% of the fair market or book
value, respectively, of the total assets of such
Person and its Subsidiaries;
(ii) the equity of such Person and its Subsidiaries in
the revenues of the Subsidiary in question exceeds
5% of the revenues from continuing operations of
such Person and its Subsidiaries (on a
consolidated basis) for the twelve-month period
ending on the last day of such Person's most
recently ended fiscal quarter; or
15
(iii) the equity of such Person and its Subsidiaries in
the Consolidated Cash Flow of the Subsidiary in
question exceeds 5% of the Consolidated Cash Flow
of such Person and its Subsidiaries for the
twelve-month period ended on the last day of such
Person's most recently ended fiscal quarter.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Maximum Commitment Amount": at any date of
determination, the aggregate amount of the Commitments then
in effect.
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"NASDAQ": as defined in the definition of "Loan Value"
contained in this subsection 1.1.
"Net Cash Proceeds": in connection with any sale of
Escrowed Stock the cash proceeds received therefrom net of
all reasonable investment banking fees, legal fees,
accountants fees, underwriting discounts and commissions and
other customary fees and expenses, actually incurred in
connection therewith.
"Non-Material Subsidiary": with respect to any Person,
any Subsidiary of such Person which is not a Material
Subsidiary.
"Note": as defined in subsection 2.5(e).
"Notional Reduction Amount": with respect to each
Trigger Event, (i) if the Base Maximum Commitment Amount
immediately prior thereto was equal to or less than the
Current Reg. U Loan Value of the Escrowed Stock, the amount
by which the Base Maximum Commitment Amount would have to
have been reduced so that the related withdrawal and sale of
Escrowed Stock would not have caused the Base Maximum
Commitment Amount to exceed the Current Reg. U Loan Value of
the Escrowed Stock after giving effect to such withdrawal
and sale or (ii) if the Base Maximum Commitment Amount
immediately prior thereto exceeded such Current Reg. U Loan
Value, the amount by which the Base Maximum Commitment
16
Amount would have to have been reduced so as not to have
caused an increase in the amount by which such Base Maximum
Commitment Amount exceeded the Current Reg. U Loan Value
after giving effect to such withdrawal and sale.
"Options": the approximately [82,613,421] options to
purchase Common Stock reflected on Schedule II (excluding
each such option the expiration date of which is, after the
Closing Date, extended beyond the maturity date of such
option set forth on Schedule II), as such Options may be
adjusted pursuant to subsection 9.8.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made
hereunder or from the execution or delivery of, or otherwise
with respect to, this Agreement.
"Participant": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or
any successor thereto.
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at a particular time, any employee benefit
plan which is covered by ERISA and in respect of which the
Borrower or a Commonly Controlled Entity is (or, if such
plan were terminated at such time, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate": as defined in the definition of "ABR"
contained in this subsection 1.1.
"Properties": as defined in subsection 3.16.
"Ratios": the ratios referred to in subsection 2.1.
"Register": as defined in subsection 9.6(d).
"Regulation U": Regulation U of the Board of Governors
of the Federal Reserve System as in effect from time to
time.
17
"Reorganization": with respect to any Multiemployer
Plan, the condition that such Plan is in reorganization
within the meaning of Section 4241 of ERISA.
"Repayment Amount": as defined in subsection 2.5(f).
"Reportable Event": any of the events set forth in
Section 4043(c) of ERISA, other than those events as to
which the thirty day notice period is waived under
subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
section 2615.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and
any law, treaty, rule or regulation or final, non-appealable
determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer": the chief executive officer and
the president of the Borrower or, with respect to financial
matters, the chief financial officer of the Borrower.
"Sale Event": as defined in subsection 5.9(d).
"Single Employer Plan": any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation,
partnership or other entity of which shares of stock or
other ownership interests having ordinary voting power
(other than stock or such other ownership interests having
such power only by reason of the happening of a contingency)
to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity
are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or
more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Borrower.
"Surplus Escrowed Stock": as of the indicated
effective date of any request for an increase in the Base
Maximum Commitment Amount, the sum of (i) the amount of
Common Stock deposited in the Escrow Account in connection
with such request plus (ii) an amount equal to the excess,
18
if any, of (x) the amount of Escrowed Stock prior to the
deposit referred to in the preceding clause (i) over (y) the
portion of such Escrowed Stock that is at that time required
for a Trigger Event not to occur.
"Taxes": any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed
by any Governmental Authority, other than Excluded Taxes.
"Termination Date": the fifth anniversary of the
Closing Date.
"Trading Day": (x) if the Common Stock is listed or
admitted for trading on the New York Stock Exchange or
another national securities exchange, a day on which the New
York Stock Exchange or such other national securities
exchange is open for business or (y) if the Common Stock is
quoted on the National Market System of the NASDAQ, a day on
which trades may be made on such National Market System or
(z) otherwise, any Business Day.
"Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all
of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been
made on the same day).
"Transferee": as defined in subsection 9.6(f).
"Trigger Event": each withdrawal of Escrowed Stock from
the Escrow Account that, after giving effect to any
concurrent reduction in the Maximum Commitment Amount, (i)
results in the Base Maximum Commitment Amount exceeding the
Current Reg. U Loan Value of the Escrowed Stock or (ii)
which causes an increase in the amount by which such Base
Maximum Commitment Amount exceeds such Current Reg. U Loan
Value.
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"Undertakings": the collective reference to the
Borrower's obligations hereunder to comply with the Ratios,
to comply with the provisions of subsections 5.9 and 5.10
and to comply with the provisions of Section 5 of the Escrow
Agreement.
"Valuation Date": means the second Business Day of
each week.
19
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in any Notes or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any
certificate or other document made or delivered pursuant hereto,
accounting terms relating to the Borrower and its Subsidiaries
not defined in subsection 1.1 and accounting terms partly defined
in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of
such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make
revolving credit loans ("Loans") to the Borrower from time to
time during the Commitment Period in an aggregate principal
amount at any one time outstanding not to exceed the amount of
such Lender's Commitment, provided that no Lender shall be
required to make a Loan to the extent that, after giving effect
thereto
(1) the ratio of (x) the sum of (i) the Aggregate Loan
Value of the Escrowed Stock and (ii) the Aggregate Loan
Value of the Options, in each case as of the immediately
preceding Valuation Date, to (y) the sum (such sum, the
"Covered Amount") of the aggregate outstanding principal
amount of the Loans plus the Interest Component at such
time, would be less than 1.70 to 1.0; or
(2) the ratio of (x) the Aggregate Loan Value of the
Escrowed Stock as of the immediately preceding Valuation
Date, to (y) the Covered Amount at such time would be less
than (A) when the Loan Value of the Escrowed Stock is
greater than or equal to $24 per share (as adjusted pursuant
to subsection 9.8), 1.25 to 1.0 and (B) when the Loan Value
of the Escrowed Stock is less than $24 per share (as
adjusted pursuant to subsection 9.8), 1.40 to 1.0.
20
During the Commitment Period the Borrower may use the Commitments
by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans, (iii) or a combination thereof, as
determined by the Borrower and notified to the Administrative
Agent in accordance with subsections 2.2 and 2.7, provided that
no Loan shall be made as a Eurodollar Loan after the day that is
one month prior to the Termination Date.
2.2 Procedure for Borrowing. The Borrower may borrow
under the Commitments during the Commitment Period on any
Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New
York City time, (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Loans are to
be initially Eurodollar Loans and (b) one Business Day prior to
the requested Borrowing Date, otherwise), specifying (i) the
amount to be borrowed, (ii) the requested Borrowing Date, (iii)
whether the borrowing is to be of Eurodollar Loans, ABR Loans or
a combination thereof, (iv) if the borrowing is to be entirely or
partly of Eurodollar Loans, the respective amounts of each such
Type of Loan and the lengths of the initial Interest Periods
therefor and (v) the portion of the requested Loans, if any,
allocable to the Interest Sublimit. Each borrowing under the
Commitments shall be in an amount equal to (x) in the case of ABR
Loans, $5,000,000 or integral amounts of $1,000,000 in excess
thereof (or, if the then Available Commitments are less than
$5,000,000, such lesser amount) and (y) in the case of Eurodollar
Loans $5,000,000 or integral amounts of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account
of the Borrower at the office of the Administrative Agent
specified in subsection 9.2 prior to 11:00 A.M., New York City
time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the
books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent. The foregoing
provisions shall not apply to the continuation or conversion of
Loans pursuant to subsection 2.7.
21
2.3 Commitment and Other Fees. The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a
commitment fee for the period from and including the first day of
the Commitment Period to the Termination Date, computed at the
rate of 1/4th of 1% per annum on the average daily amount of the
Available Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of
each March, June, September and December and on the Termination
Date or such earlier date as the Commitments shall terminate as
provided herein, commencing on the first of such dates to occur
after the date hereof. In addition the Borrower agrees to pay
the Administrative Agent the fees specified in the letter, dated
April 12, 1996, from Chase Securities Inc. and Chemical to the
Borrower.
2.4 Termination or Reduction of Commitments. (a) The
Borrower shall have the right, upon not less than five Business
Days' notice to the Administrative Agent, to terminate the
Commitments or, from time to time, to reduce the amount of the
Commitments but not below the outstanding principal amount of the
Loans after giving effect to any prepayments thereof to be made
on or prior to the effective date of such termination or
reduction. Any such reduction shall be in an amount equal to
$5,000,000 or integral amounts of $1,000,000 in excess thereof
and shall reduce permanently the Commitments then in effect.
Upon receipt of any notice pursuant to this subsection 2.4(a),
the Administrative Agent shall promptly notify each Lender
thereof.
(b) On the fifteenth day of each month or if such day
is not a Business Day, on the next succeeding Business Day
(commencing with the first such day to occur in the month
following the month in which the Closing Date occurs), the
Commitments shall automatically and permanently be reduced by an
amount equal to the cash proceeds received by or on behalf of the
Borrower during the immediately preceding month from the exercise
of Options (or, in the case of the first such day, received in
respect of the Options through the last day of the preceding
month) (the "Automatic Commitment Reduction Amount"), provided
that to the extent that the Automatic Commitment Reduction Amount
as calculated with respect to any month or period is less than
$1,000,000, the Commitments shall not be reduced pursuant to this
subsection and such Automatic Commitment Reduction Amount shall
be added to the calculation of the Automatic Commitment Reduction
Amount in respect of the immediately subsequent month.
2.5 Repayment of Loans; Evidence of Debt; Limited
Recourse. (a) Subject to the limitations on recourse to the
Borrower set forth in subsection 2.5(f), the Borrower hereby
unconditionally promises to pay to the Administrative Agent for
22
the account of each Lender the then unpaid principal amount of
each Loan of such Lender on the Termination Date (or such earlier
date on which the Loans become due and payable pursuant to
subsection 7.1). Subject to the limitations on recourse to the
Borrower set forth in subsection 2.5(f), the Borrower hereby
further agrees to pay interest on the unpaid principal amount of
the Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the
dates, set forth in subsection 2.9.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain the
Register pursuant to subsection 9.6(d), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of
each Loan made hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) both the amount of
any sum received by the Administrative Agent hereunder from the
Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts
of each Lender maintained pursuant to subsection 2.5(b) shall, to
the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to such Borrower by such Lender in
accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender a promissory note of the Borrower
evidencing the Loans of such Lender, substantially in the form of
Exhibit A with appropriate insertions as to date and principal
amount (a "Note").
(f) Subject to the two succeeding sentences, the
obligation to repay the Loans, together with the interest thereon
pursuant to this Agreement (collectively, the "Repayment
Amount"), shall be recourse to the Borrower only in an amount
equal to the cash proceeds from the exercising of the Options and
23
an amount equal to the Net Cash Proceeds of the sale of the
Escrowed Stock and to the Undertakings. Notwithstanding the
foregoing, the obligations set forth in subsections 2.3, 2.14,
2.15, 2.16 (other than clause (b) of subsection 2.16), 6.1 and
9.5 shall be fully recourse to the Borrower. In addition, to the
extent provided in subsection 7.2, if the Borrower shall fail to
perform any of its Undertakings (taking into account the time
periods provided for herein for such performance) and, as a
result, the Loans and all other amounts owing in respect thereof
shall not be paid in full, the Repayment Amount shall become
fully recourse to the Borrower, and the Repayment Amount and all
other amounts owing to the Administrative Agent and the Lenders
shall be immediately due and payable in cash.
2.6 Optional and Mandatory Prepayments. (a) The
Borrower may at any time and from time to time prepay the Loans,
in whole or in part, without premium or penalty, upon irrevocable
notice to the Administrative Agent (which notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City
time, at least (i) three Business Days prior to the date of such
prepayment with respect to Eurodollar Loans and (ii) one Business
Day prior to the date of such prepayment with respect to ABR
Loans), specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans, ABR Loans or a combination
thereof, and, if of a combination thereof, the amount allocable
to each. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due
and payable on the date specified therein, together with any
amounts payable pursuant to subsection 2.16 and accrued interest
to such date on the amount prepaid. Partial prepayments under
this subsection 2.6(a) shall be in an aggregate principal amount
of $5,000,000 or in integral amounts of $1,000,000 in excess
thereof.
(b) If on any Valuation Date (the "First Valuation
Date") the Borrower is not in compliance with the Ratios (after
giving effect to any deposit of Common Stock into the Escrow
Account pursuant to subsection 5.9), the Borrower shall, without
notice or demand, on or before the immediately succeeding
Valuation Date (if on such date the Borrower is still not in
compliance with the Ratios) prepay the Loans in an aggregate
principal amount necessary to cause compliance with the Ratios as
of the First Valuation Date.
(c) Upon the release of Escrowed Stock from the Escrow
Account, the Borrower shall prepay the Loans in an amount equal
to the greater of (i) the amount, if any, necessary to cause
compliance with the Ratios (after giving effect to the release of
such Escrowed Stock) and (ii) (x) if the outstanding amount of
24
the Loans immediately prior to the release of the Escrowed Stock
was less than or equal to the Current Reg. U Loan Value of the
Escrowed Stock prior to such release, an amount such that after
giving effect thereto, the outstanding principal amount of the
Loans does not exceed the Current Reg. U Loan Value of the
remaining Escrowed Stock or (y) if the outstanding amount of the
Loans immediately prior to the release of the Escrowed Stock
exceeded the Current Reg. U Loan Value of the Escrowed Stock
prior to such release, an amount such that after giving effect
thereto, the amount of such excess does not increase based on the
Current Reg. U Loan Value of the remaining Escrowed Stock. All
prepayments required to be made pursuant to this subsection
2.6(c) shall be due (x) in the case of any such prepayment
obligation which is to be satisfied with the proceeds from the
sale of such Escrowed Stock, not later than the second Business
Day following receipt of the proceeds from the sale of such
Escrowed Stock and (y) otherwise, on the Business Day such
Escrowed Stock is released.
(d) On each date that the Commitments are reduced
pursuant to subsection 2.4, the Borrower shall prepay the Loans
by the amount, if any, that the outstanding aggregate principal
amount of the Loans exceeds the Maximum Commitment Amount (after
giving effect to such reduction in the Commitments).
(e) Each prepayment pursuant to subsections 2.6(b)
through (d) shall be accompanied by payment of any amounts
payable pursuant to subsection 2.16 and accrued interest to such
date on the amount prepaid.
2.7 Conversion and Continuation Options.
(a) Notwithstanding the provisions of subsection 2.2, the
Borrower may elect from time to time to convert Eurodollar Loans
to ABR Loans by giving the Administrative Agent at least one
Business Day's prior irrevocable notice of such election (which
notice must be received by the Administrative Agent prior to
10:00 A.M., New York City time), provided that any such
conversion of Eurodollar Loans may only be made on the last day
of an Interest Period with respect thereto. The Borrower may
elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the Administrative Agent at least three Business Days'
prior irrevocable notice of such election. Any such notice of
conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon
receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of
outstanding Eurodollar Loans and ABR Loans may be converted as
provided herein, provided that (i) no Loan may be converted into
a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Administrative Agent has determined that such
25
a conversion is not appropriate and (ii) no Loan may be converted
into a Eurodollar Loan after the date that is one month prior to
the Termination Date.
(b) Notwithstanding subsection 2.2, any Eurodollar
Loans may be continued as such upon the expiration of the then
current Interest Period with respect thereto by the Borrower
giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan may be
continued as such (i) when any Event of Default has occurred and
is continuing and the Administrative Agent has determined that
such a continuation is not appropriate or (ii) after the date
that is one month prior to the Termination Date and provided,
further, that if the Borrower shall fail to give such notice or
if such continuation is not permitted such Loans shall be
automatically converted to ABR Loans on the last day of such then
expiring Interest Period. Upon receipt of any notice pursuant to
this subsection 2.7(b), the Administrative Agent shall promptly
notify each Lender thereof.
2.8 Minimum Amounts and Maximum Number of Tranches.
All borrowings, conversions and continuations of Loans hereunder
and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after
giving effect thereto, the aggregate principal amount of the
Loans comprising each Tranche shall be equal to $5,000,000 or
integral amounts of $1,000,000 in excess thereof. In no event
shall there be more than 20 Tranches outstanding at any time.
2.9 Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for such day plus the Applicable
Margin.
(b) Each ABR Loan shall bear interest at a rate per
annum equal to the ABR.
(c) If all or a portion of (i) any principal of any
Loan, (ii) any interest payable thereon, (iii) any commitment fee
or (iv) any other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or
otherwise), the amount which is not paid when due shall bear
interest at a rate per annum which is (x) in the case of
principal, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection plus 2%
or (y) in the case of any such overdue interest, commitment fee
or other amount, the rate described in paragraph (b) of this
26
subsection plus 2%, in each case from the date of such
non-payment until such overdue principal, interest, commitment
fee or other amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each
Interest Payment Date, provided that interest accruing pursuant
to paragraph (c) of this subsection shall be payable from time to
time on demand.
2.10 Computation of Interest and Fees. (a) Commitment
fees and, whenever it is calculated on the basis of the Prime
Rate, interest shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed;
and, otherwise, interest shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the
ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of
the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Borrower and the Lenders
in the absence of manifest error. The Administrative Agent
shall, at the request of the Borrower, deliver to the Borrower a
statement showing the quotations used by the Administrative Agent
in determining any interest rate pursuant to subsection 2.9(a).
2.11 Inability to Determine Interest Rate. If prior
to the first day of any Interest Period:
(a) the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon
the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist
for ascertaining the Eurodollar Rate for such Interest
Period, or
(b) the Administrative Agent shall have received
notice from the Majority Lenders that the Eurodollar Rate
determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
27
the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans
requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar
Loans shall be continued as ABR Loans and (z) any outstanding
Eurodollar Loans shall be converted, on the first day of such
Interest Period, to ABR Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower
have the right to convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. (a) Each
borrowing by the Borrower from the Lenders hereunder, each
payment by the Borrower on account of any commitment fee
hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment
Percentages of the Lenders. Each payment (including each
prepayment) by the Borrower on account of principal of and
interest on the Loans shall be made pro rata according to the
respective outstanding principal amounts of the Loans then held
by the Lenders. All payments (including prepayments) to be made
by the Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York City
time, on the due date thereof to the Administrative Agent, for
the account of the Lenders, at the Administrative Agent's office
specified in subsection 9.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such
Lender will not make the amount that would constitute its
Commitment Percentage of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the
daily average Federal Funds Effective Rate for the period until
28
such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest
error. If such Lender's Commitment Percentage of such borrowing
is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to
the Loans comprising such borrowing, on demand, from the
Borrower. 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.
2.13 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert ABR Loans to Eurodollar Loans shall forthwith be
cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR
Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period
as required by law. If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to
subsection 2.16.
2.14 Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request
or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any
Eurodollar Loan made by it, or change the basis of taxation
of payments to such Lender in respect thereof (except for
changes in the rate of tax on the overall net income of such
Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or
29
other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise
included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to
such Lender, by an amount which such Lender reasonably deems to
be material, of making, converting into, continuing or
maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the
Borrower shall promptly pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or
reduced amount receivable.
(b) If any Lender shall have reasonably determined
that the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of
law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on
such Lender's or such corporation's capital as a consequence of
its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by
an amount reasonably deemed by such Lender to be material, then
from time to time, the Borrower shall promptly pay to such Lender
such additional amount or amounts as will compensate such Lender
or such corporation for such reduction.
(c) If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of
the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender to the Borrower (with a copy
to the Administrative Agent) shall be conclusive in the absence
of manifest error. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
2.15 Taxes. (a) All payments made by the Borrower
under this Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of,
any present or future Taxes or Other Taxes. If any such Taxes or
Other Taxes are required to be withheld from any amounts payable
30
to the Administrative Agent or any Lender hereunder or under any
Note, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Taxes
and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be
required to increase any such amounts payable to any Foreign
Lender if such Foreign Lender fails to comply with the
requirements of paragraph (d) of this subsection. Whenever any
Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. The agreements
in this subsection 2.15 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts
payable hereunder.
(b) In addition, the Borrower agrees to pay any Other
Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) The Borrower shall indemnify the Administrative
Agent and each Lender, within 10 days after written demand
therefor, for the full amount of any Taxes or Other Taxes
(including Taxes or Other Taxes imposed or asserted on amounts
payable under this subsection) paid by the Administrative Agent
or such Lender, as the case may be, with respect to payments by
or on account of any obligation of the Borrower hereunder and any
liability (including penalties, interest and reasonable expenses)
arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted by the
relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a
Lender or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) Each Foreign Lender shall:
(i) deliver to the Borrower and the Administrative
Agent (A) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal
Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Borrower and the Administrative
Agent two further copies of any such form or certification
on or before the date that any such form or certification
31
expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation,
any change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be required
which renders all such forms inapplicable or which would prevent
such Lender from duly completing and delivering any such form
with respect to it and such Lender so advises the Borrower and
the Administrative Agent. Such Lender shall certify (i) in the
case of a Form 1001 or 4224, that it is entitled to receive
payments under this Agreement without deduction or withholding of
any United States federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a
Lender or a Participant pursuant to subsection 9.6 shall, upon
the effectiveness of the related transfer, be required to provide
all of the forms and statements required pursuant to this
subsection, provided that in the case of a Participant such
Participant shall furnish a copy of all such required forms and
statements to the Lender from which the related participation
shall have been purchased.
(e) If the Administrative Agent or any Lender shall
become aware that it is entitled to claim a refund from any
Governmental Authority in respect of any Taxes or Other Taxes as
to which it has been indemnified by the Borrower, or with respect
to which the Borrower has paid additional amounts pursuant to
this subsection 2.15, it shall promptly notify the Borrower of
the availability of such refund claim and shall, within ten (10)
days after receipt of a request by the Borrower, make a claim to
such Governmental Authority for such refund at the Borrower's
expense. If the Administrative Agent or any Lender 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 Borrower or with respect
to which the Borrower has paid additional amounts pursuant to
this subsection 2.15, it shall, within ten (10) days from the
date of such receipt, pay over such refund to the Borrower (but
only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this subsection 2.15 with
respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of such Lender or the
Administrative Agent and without interest (other than interest
paid by the relevant Governmental Authority with respect to such
32
refund); provided, however, that the Borrower, upon the request
of such Lender or the Administrative Agent, agrees to repay the
amount paid over to the Borrower (plus penalties, interest or
other charges) to such Lender or the Administrative Agent in the
event such Lender or the Administrative Agent is required to
repay such refund to such Governmental Authority.
2.16 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in
making any prepayment after the Borrower has given a notice
thereof in accordance with the provisions of this Agreement or
(c) the making of a prepayment or conversion of Eurodollar Loans
on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest which
would have accrued on the amount so prepaid or converted, or not
so borrowed, converted or continued, for the period from the date
of such prepayment or conversion or of such failure to borrow,
convert or continue to the last day of such Interest Period (or,
in the case of a failure to borrow, convert or continue, the
Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such
Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest
(as reasonably determined by such Lender) which would have
accrued to such Bank on such amount by placing such amount on
deposit for a comparable period with leading banks in the
interbank eurodollar market. This covenant shall survive the
termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
2.17 Change of Lending Office. Each Lender agrees
that if it makes any demand for payment under subsection 2.14 or
2.15(a), or if any adoption or change of the type described in
subsection 2.13 shall occur with respect to it, it will use
reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not
be disadvantageous to it, as determined in its sole discretion)
to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to
make payments under subsection 2.14 or 2.15(a), or would
eliminate or reduce the effect of any adoption or change
described in subsection 2.13.
33
2.18 Replacement of Lenders under Certain
Circumstances. The Borrower shall be permitted to replace any
Lender which (a) requests reimbursement for amounts owing
pursuant to subsection 2.14 or 2.15(a) or (b) is affected in the
manner described in subsection 2.13 and as a result thereof any
of the actions described in said subsection are required to be
taken; provided that (i) such replacement does not conflict with
any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii)
the Borrower shall repay (or the replacement bank or institution
shall purchase, at par) all Loans and other amounts owing to such
replaced Lender prior to the date of replacement, (iv) the
Borrower shall be liable to such replaced Lender under subsection
2.16 if any Eurodollar Loan owing to such replaced Lender shall
be prepaid (or purchased) other than on the last day of the
Interest Period relating thereto, (v) the replacement bank or
institution, if not already a Lender, and the terms and
conditions of such replacement, shall be reasonably satisfactory
to the Administrative Agent, (vi) the replaced Lender shall be
obligated to make such replacement in accordance with the
provisions of subsection 9.6 (provided that the Borrower shall be
obligated to pay the registration and processing fee referred to
therein), and (vii) until such time as such replacement shall be
consummated, the Borrower shall pay all additional amounts (if
any) required pursuant to subsection 2.14 or 2.15(a), as the case
may be.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to
enter into this Agreement and to make the Loans, the Borrower
hereby represents and warrants to the Administrative Agent and
each Lender that:
3.1 Financial Condition. The consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at
December 31, 1995 and the related consolidated statements of
income and of cash flows for the fiscal year ended on such date,
reported on by Ernst & Young, LLP, copies of which have
heretofore been furnished to each Lender, are complete and
correct and present fairly the consolidated financial condition
of the Borrower and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. The
unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at March 31, 1996 and the related
unaudited consolidated statements of income and of cash flows for
the three-month period ended on such date, certified by a
Responsible Officer, copies of which have heretofore been
34
furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and
its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated
cash flows for the three-month period then ended (subject to
normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as
disclosed therein). Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent
balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any
material long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto to
the extent required by GAAP.
3.2 No Change. Since December 31, 1995 there has been
no development, circumstance or event which has had or could
reasonably be expected to have a Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law. Each of
the Borrower and its Material Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and
authority, and the legal right, to own and operate its property,
to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified
as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of
Law, except in each case to the extent that such failure could
not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable
Obligations. The Borrower has the corporate power and authority,
and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and to borrow hereunder and has
taken all necessary corporate action to authorize the borrowings
on the terms and conditions of this Agreement and any Notes and
to authorize the execution, delivery and performance of the Loan
Documents to which it is a party. Except as contemplated by the
Escrow Agreement, no consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the
35
borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents to
which the Borrower is a party. This Agreement has been, and each
other Loan Document to which it is a party will be, duly executed
and delivered on behalf of the Borrower. This Agreement
constitutes, and each other Loan Document to which it is a party
when executed and delivered will constitute, a legal, valid and
binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
3.5 No Legal Bar. The execution, delivery and
performance of the Loan Documents to which the Borrower is a
party, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or Contractual
Obligation of the Borrower or of any of its Subsidiaries and will
not result in, or require, the creation or imposition of any Lien
on any of its or their respective properties or revenues pursuant
to any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. Subject to the matters
disclosed in the Disclosure Documents, no litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to any of the Loan Documents or any
of the transactions contemplated hereby or thereby, or (b) which
could reasonably be expected to have a Material Adverse Effect.
3.7 No Default. Subject to the matters disclosed in
the Disclosure Documents, neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be
expected to have a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the
Borrower and its Subsidiaries has good record and marketable
title in fee simple to, or a valid leasehold interest in, all its
real property, and good title to, or a valid leasehold interest
in, all its other property except, in each case, to the extent
that the failure to have such could not reasonably be expected to
have a Material Adverse Effect. Except to the extent
contemplated by the Escrow Agreement, no Lien exists on any of
the Escrowed Stock or the exercise price payable to the Borrower
in respect of the Options.
36
3.9 Intellectual Property. The Borrower and each of
its Subsidiaries owns, or is licensed or otherwise entitled to
use, all trademarks, tradenames, copyrights, technology, know-how
and processes necessary for the conduct of its business as
currently conducted except for those the failure to own or
license or otherwise be entitled to use which could not
reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). The use of such Intellectual Property
by the Borrower and its Subsidiaries does not infringe on the
rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
3.10 No Burdensome Restrictions. Subject to the
matters disclosed in the Disclosure Documents, no Requirement of
Law or Contractual Obligation of the Borrower or any of its
Subsidiaries could reasonably be expected to have a Material
Adverse Effect.
3.11 Taxes. Each of the Borrower and its Subsidiaries
has filed or caused to be filed all tax returns which, to the
knowledge of the Borrower, are required to be filed and has paid
all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority (other than (i) any the amount or
validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the
Borrower or its Subsidiaries, as the case may be, or (ii) with
respect to any Subsidiary, any that could not reasonably be
expected to have a Material Adverse Effect). With respect to the
Borrower, no tax Lien has been filed, and, with respect to any
Subsidiary, no tax Lien has been filed that could reasonably be
expected to have a Material Adverse Effect. No claim is being
asserted against the Borrower or any of its Subsidiaries with
respect to any such tax that could reasonably be expected to have
a Material Adverse Effect.
3.12 Federal Regulations. No part of the proceeds of
any Loans will be used for any purpose which violates, or which
would be inconsistent with, Regulation G or Regulation U of the
Board of Governors of the Federal Reserve System as now and from
time to time hereafter in effect. On the Closing Date, the
Borrower will furnish to the Administrative Agent and each Lender
a statement in conformity with the requirements of FR Form G-1 or
FR Form U-1 referred to in said Regulation G or Regulation U, as
the case may be.
37
3.13 ERISA. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred
during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan,
which, if then terminated, has had or could reasonably be
expected to have a Material Adverse Effect. Each Plan has
complied with the applicable provisions of ERISA and the Code
except where such failure to comply could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Commonly Controlled Entity
has incurred or reasonably expects to incur any liability under
Title IV of ERISA (other than for premiums due to the PBGC which
are not in default) which, individually or in the aggregate,
reasonably, has or could be expected to have a Material Adverse
Effect and no Lien in favor of the PBGC or a Plan has arisen,
during such five year period. The present value of all accrued
benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by an
amount which, when aggregated for all such Plans whose
liabilities exceed its assets, is in excess of $50,000,000.
Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and
neither the Borrower nor any Commonly Controlled Entity would
become subject to any liability under ERISA if the Borrower or
any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most
closely preceding the date on which this representation is made
or deemed made, where such withdrawal or liability could,
individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. No such Multiemployer Plan is in
Reorganization or Insolvent where the effect of such
Reorganization or Insolvency could, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
3.14 Investment Company Act; Other Regulations. The
Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended. The Borrower is
not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of
the Federal Reserve System) which limits its ability to incur
Indebtedness.
3.15 Purpose of Loans. The proceeds of the Loans
shall be used by the Borrower for general corporate purposes of
38
the Borrower, including to pay interest and fees on the Loans;
provided that the Interest Sublimit shall be made available
exclusively for the payment of interest and fees on the Loans and
provided further that under the circumstances and for the period
described in subsection 5.9(d), the proceeds of all Loans shall
be made available exclusively for the payment of interest and
fees on the Loans.
3.16 Environmental Matters. Except as set forth on
Schedule 3.16:
(a) To the best knowledge of the Borrower, the
facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do
not contain, and have not previously contained, any
Materials of Environmental Concern in amounts or
concentrations which (i) constitute or constituted a
violation of, or (ii) could reasonably be expected to give
rise to liability under, any Environmental Law except in
either case insofar as such violation or liability, or any
aggregation thereof, is not reasonably likely to have a
Material Adverse Effect.
(b) To the best knowledge of the Borrower, the
Properties and all operations at the Properties are in
compliance, and have in the last year been in compliance, in
all material respects with all applicable Environmental
Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the
Borrower or any of its Subsidiaries (the "Business") which
non-compliance, contamination or violations, individually or
in the aggregate are reasonably likely to have a Material
Adverse Effect.
(c) To the best knowledge of the Borrower, Materials
of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a
manner or to a location which could reasonably be expected
to give rise to liability under, any Environmental Law, nor
have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could
reasonably be expected to give rise to liability under, any
applicable Environmental Law except insofar as any such
violation or liability referred to in this paragraph, or any
aggregation thereof, is not reasonably likely to have a
Material Adverse Effect.
39
3.17 Escrowed Stock. The share certificates
representing Common Stock held by the Escrow Agent from time to
time will represent Common Stock which is duly authorized for
issuance and upon its release by the Escrow Agent and its sale as
contemplated by the terms hereof and of the Escrow Agreement, and
when paid for in an amount not less than par, including when sold
in accordance with the Escrow Agreement to satisfy the
obligations of the Borrower hereunder, will be duly and validly
issued and fully paid and nonassessable.
3.18 Options. (a) The stock option agreements
related to the Options are in full force and effect and each such
agreement constitutes a legal, valid and binding obligation of
the Borrower and the other parties thereto enforceable against
the Borrower and the other parties thereto in accordance with its
terms.
(b) Schedule II contains a list of the Options and the
related expiration dates and exercise prices thereof and sets
forth whether or not such Options are vested and/or "in the
money", all as of the date specified therein, which Schedule is
complete and correct in all material respects as of such date.
(c) The information supplied by the Borrower contained
in the Confidential Information Memorandum dated April 1996 and
delivered to the Lenders in connection with the transactions
contemplated hereby and as supplemented by the Disclosure
Documents does not, when taken as a whole, contain, as of the
date hereof, any untrue statement of a material fact and does not
omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under
which they were made, not materially misleading; and there is no
fact known to the Borrower that has not been disclosed in the
Disclosure Documents or otherwise in writing to the Lenders that
has had or could reasonably be expected to have a Material
Adverse Effect.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of
each Lender to make the initial Loan requested to be made by it
is subject to the satisfaction, immediately prior to or
concurrently with the making of such Loan on the Closing Date, of
the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall
have received (i) this Agreement, executed and delivered by
a duly authorized officer of the Borrower, with a
counterpart for each Lender and (ii) the Escrow Agreement,
40
executed and delivered by a duly authorized officer of each
party thereto, with a counterpart or a conformed copy for
each Lender.
(b) Borrowing Certificate. The Administrative Agent
shall have received, with a copy for each Lender, a
certificate of the Borrower, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate
insertions and attachments, satisfactory in form and
substance to the Administrative Agent, executed by the
President or any Vice President and the Secretary or any
Assistant Secretary of the Borrower.
(c) Corporate Proceedings. The Administrative Agent
shall have received, with a copy for each Lender, a copy of
the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of the
Borrower authorizing (i) the execution, delivery and
performance of this Agreement and the other Loan Documents
to which it is a party and (ii) the borrowings contemplated
hereunder, certified by the Secretary or an Assistant
Secretary of the Borrower as of the Closing Date, which
certificate shall be in form and substance satisfactory to
the Administrative Agent and shall state that the
resolutions thereby certified have not been amended,
modified, revoked or rescinded and are in full force and effect.
(d) Incumbency Certificate. The Administrative Agent
shall have received, with a copy for each Lender, a
certificate of the Borrower, dated the Closing Date, as to
the incumbency and signature of the officers of the Borrower
executing any Loan Document satisfactory in form and
substance to the Administrative Agent, executed by the
President or any Vice President and the Secretary or any
Assistant Secretary of the Borrower.
(e) Corporate Documents. The Administrative Agent
shall have received true and complete copies of the
certificate of incorporation and by-laws of the Borrower,
certified as of the Closing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary of
the Borrower.
(f) Form U-1. The Administrative Agent shall
have received a Form F.R. U-1 for each Lender, duly
completed and satisfactory to such Lender and in conformity
with Regulation U.
41
(g) Fees. The Administrative Agent shall have
received the fees to be received on the Closing Date and
referred to in the letter dated April 12, 1996 from Chase
Securities Inc. and Chemical to the Borrower, and each
Lender shall have received the up-front fee agreed to be
paid to such Lender by the Administrative Agent.
(h) Legal Opinions. The Administrative Agent shall
have received, with a counterpart for each Lender, the
following executed legal opinions:
(i) the executed legal opinion of Cravath,
Swaine & Moore, counsel to the Borrower, substantially
in the form of Exhibit D-1; and
(ii) the executed legal opinion of Peter R.
Haje, Esq., general counsel of the Borrower,
substantially in the form of Exhibit D-2.
Each such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement
as the Administrative Agent may reasonably require.
(i) Escrowed Stock; Stock Powers. The Administrative
Agent shall have received evidence, satisfactory to it, that
certificates representing Common Stock authorized for
issuance at least equal to the Closing Date Margin
Requirement (together with an undated stock power for each
such certificate executed in blank by a duly authorized
officer of the Borrower) have been delivered to the Escrow
Agent to be held by the Escrow Agent in accordance with the
terms of the Escrow Agreement.
(j) Disclosure Documents. The Administrative Agent
shall have received, with copies for each Lender, true and
complete copies of each Disclosure Document, certified as
such as of the Closing Date by an officer of the Borrower.
4.2 Conditions to Each Loan. The agreement of each
Lender to make any Loan requested to be made by it pursuant to
subsection 2.2 on any date (including, without limitation, its
initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or
pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on
and as of such date.
42
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving
effect to the Loans requested to be made on such date.
(c) Borrowing Base. After giving effect to the Loans
to be made on such date and any prepayments made on such
date, the Borrower shall be in compliance with the Ratios as
of the immediately preceding Valuation Date and, except with
respect to the initial Loans to be made hereunder, the
Administrative Agent shall have received a Borrowing Base
Certificate in respect of such Valuation Date confirming
compliance as of such Valuation Date.
(d) Base Maximum Commitment Amount. The outstanding
principal amount of the Loans does not exceed the Base
Maximum Commitment Amount on such date after giving effect
to the Loans to be made on such date and any corresponding
increase in the Base Maximum Commitment Amount on such date.
(e) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by
this Agreement and the other Loan Documents shall be
satisfactory in form and substance to the Administrative
Agent, and the Administrative Agent shall have received such
other documents and legal opinions in respect of any aspect
or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date
thereof that the conditions contained in this subsection have
been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender
or the Administrative Agent hereunder or under any other Loan
Document, the Borrower shall and (except in the case of
subsections 5.1, 5.2, 5.7, 5.9, 5.10 and 5.11) shall cause each
of its Material Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within
100 days after the end of each fiscal year of the Borrower,
a copy of the consolidated balance sheet of the Borrower and
its consolidated Subsidiaries as at the end of such year and
43
the related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous
year, reported on without a qualification arising out of the
scope of the audit, by Ernst & Young, LLP or other
independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later
than 60 days after the end of each of the first three
quarterly periods of each fiscal year of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated statements of income and
retained earnings and of cash flows of the Borrower and its
consolidated Subsidiaries for such quarter and the portion
of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal
year-end audit adjustments);
all such financial statements shall be complete and correct in
all material respects and shall be prepared in reasonable detail
and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and
disclosed therein).
5.2 Certificates; Other Information. Furnish to each
Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a), a certificate
of the independent certified public accountants reporting on
such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b), a
certificate of a Responsible Officer stating that, to the
best of such Officer's knowledge, during such period the
Borrower has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained
in this Agreement and the other Loan Documents to be
observed, performed or satisfied by it, and that such
Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate;
44
(c) (i) on or prior to the second Business Day of
each week (or, at any time during a Compliance Ratio Period,
simultaneously with the delivery of the certificate referred
to in clause (ii) below but calculated as of the Valuation
Date immediately preceding the date of delivery), an
officers certificate substantially in the form of Exhibit E
(a "Borrowing Base Certificate") and (ii) on or prior to the
tenth day of each month (or if such day is not a Business
Day, the next succeeding Business Day), a report in form and
substance satisfactory to the Administrative Agent setting
forth, among other things, (A) the Options exercised during
the previous month and the aggregate cash and stock exercise
prices received by or on behalf of the Borrower in respect
thereof and (B) the remaining unexercised Options, the
related expiration dates and exercise prices thereof,
whether such Options are vested and whether such Options are
"in the money", in each case certified by any Vice President
of the Borrower as true and correct in all material
respects;
(d) promptly upon transmission thereof, copies of all
other financial statements and reports which the Borrower
sends to its stockholders, and promptly after the same are
filed, copies of all other financial statements and public
reports which the Borrower may be required to make to, or
file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority, but excluding
any preliminary or confidential filings, any filings
required to be made by the Borrower pursuant to Section
13(d) of the Securities Exchange Act of 1934, as amended
(the "Act") and any filings required to be made by the
Borrower pursuant to Section 16(a) of the Act; and
(e) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request.
5.3 Payment of Obligations. Pay, discharge or
otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its obligations of whatever
nature, except where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Material
Subsidiaries, as the case may be.
5.4 Maintenance of Existence. Preserve, renew and
keep in full force and effect its corporate existence and take
all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its
45
business except as otherwise permitted pursuant to subsections
6.2 and 9.7; provided, however, but subject to subsection 6.4,
that the Borrower shall not be required to preserve any such
right, privilege or franchise, or the corporate existence of any
Material Subsidiary, if the Board of Directors of the Borrower
shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower and each
of its Material Subsidiaries, taken as a whole, and that the loss
thereof is not, and will not be, adverse in any material respect
to the Lenders; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, be reasonably expected to
have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. Keep all
property useful and necessary in its business in good working
order and condition; maintain with financially sound and
reputable insurance companies insurance on all its property in at
least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in
the same or a similar business or as are otherwise commercially
reasonable at such time.
5.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which
full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations,
properties and financial and other condition of the Borrower and
its Material Subsidiaries with officers and employees of the
Borrower and its Material Subsidiaries and with its independent
certified public accountants.
5.7 Notices. Promptly give notice to the
Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its
Subsidiaries or (ii) litigation, investigation or proceeding
which may exist at any time between the Borrower or any of
its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material
Adverse Effect;
46
(c) except to the extent contained in the Disclosure
Documents, any litigation or proceeding affecting the
Borrower or any of its Subsidiaries that, individually or in
the aggregate, could reasonably be expected to have a
Material Adverse Effect or in which injunctive or similar
relief is sought; and
(d) the following events, as soon as possible and in
any event within 30 days after the Borrower knows or has
reason to know thereof: (i) the occurrence or expected
occurrence of any Reportable Event with respect to any Plan,
a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action
by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the
Borrower proposes to take with respect thereto.
5.8 Environmental Laws. Comply with all applicable
Environmental Laws and obtain and comply in all material respects
with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws except to the extent that failure to do so
could not be reasonably expected to have a Material Adverse
Effect.
5.9 Maintenance of Escrow Agreement; Compliance with
Ratios; Undertakings to Deliver Common Stock. (a) At all times
on and after the Closing Date and prior to the payment in full of
the Loans and all other amounts owing to the Lenders and the
Administrative Agent hereunder, maintain the Escrow Agreement in
full force and effect.
(b) At all times maintain on deposit with the Escrow
Agent sufficient share certificates representing authorized
shares of Escrowed Stock to comply with the Ratios as and to the
extent required by subsection 2.6. The Borrower may comply with
the foregoing requirement by (i) (except after a Sale Event as
provided in subsection 5.9(d) and prior to the sale of all Common
Stock being held in the Escrow Account as of such Sale Event)
depositing additional share certificates representing authorized
shares of Common Stock in the Escrow Account (together with an
47
undated stock power for each such certificate executed in blank
by a duly authorized officer of the Borrower), (ii) causing the
Escrow Agent to deliver Escrowed Stock to the Borrower for sale
and, to the extent required by subsection 2.6, applying the Net
Cash Proceeds thereof, together with any additional amounts
required pursuant to such subsection, to the prepayment of the
Loans or (iii) prepaying the required amount of the Loans
pursuant to subsection 2.6(b). If at the close of business on
any Valuation Date the Borrower shall not be in compliance with
the Ratios, the Borrower shall comply with the Ratios by any one
or more of the methods referred to above on or prior to the
succeeding Valuation Date. For purposes of determining
compliance with the Ratios, the computation thereof on any
Valuation Date shall remain in effect until the succeeding
Valuation Date.
(c) The Borrower shall be permitted to withdraw shares
of Escrowed Stock from time to time (i) so long as, after giving
effect thereto, (A) no Default or Event of Default shall have
occurred, (B) the Borrower is in compliance with the Ratios as of
the immediately preceding Valuation Date and (C) after giving
effect to such withdrawal and any concurrent reduction in the
Maximum Commitment Amount, the Maximum Commitment Amount is less
than or equal to 50% of the Aggregate Loan Value of the remaining
Escrowed Stock as of the Valuation Date immediately preceding the
date of withdrawal or (ii) if such withdrawal is for the purpose
of sale and the Net Cash Proceeds thereof are applied, together
with any additional amounts, to the extent required to maintain
compliance with Regulation U, as (and to the extent) provided in
subsection 2.6(c).
(d) If (i) the aggregate number of shares of Escrowed
Stock delivered from time to time into the Escrow Account (net of
any permitted withdrawals made pursuant to clause (i) of
subsection 5.9(c)) equals or exceeds 52,500,000 (a "Sale Event")
and (ii) the Borrower is not in compliance with the Ratios, the
Borrower, at the request of the Administrative Agent, shall sell
such number of shares of the Escrowed Stock as shall be necessary
to generate Net Cash Proceeds that when applied to prepay the
outstanding Loans as provided in subsection 2.6(c) will cause
compliance with the Ratios calculated as of the most recent
Valuation Date. The Borrower shall apply such Net Cash Proceeds
as provided in such subsection. In addition the Borrower may,
after a Sale Event, sell Escrowed Stock for the purpose of paying
interest and commitment fees hereunder. After a Sale Event and
except as provided in subsection 10.1(c), the Borrower will not
be permitted to deposit additional shares of Common Stock into
the Escrow Account until all shares then being held in the Escrow
Account have been sold. At such time as all such Escrowed Stock
shall have been sold, if the Borrower is not in compliance with
48
the Ratios, calculated as of the immediately preceding Valuation
Date (after giving effect to all such Escrowed Stock sold and any
prepayments of the Loans), it shall (unless it prepays the
required amount of the Loans pursuant to subsection 2.6(b))
deposit additional shares in the Escrow Account on or prior to
the next Valuation Date to bring it into compliance as of the
immediately preceding Valuation Date. After a Sale Event and
prior to the sale of all Common Stock being held in the Escrow
Account as of the Sale Event, the Borrower may continue to borrow
subject to the terms and conditions of this Agreement. After a
Sale Event and the sale of all Common Stock held in the Escrow
Account as of the Sale Event, new borrowings pursuant to
subsection 2.2 will not be available for any purpose other than
to pay interest and fees hereunder until the Valuation Date on
which the Loan Value of the Common Stock exceeds $20 per share,
as such $20 per share price may be adjusted pursuant to
subsection 9.8 (the "Reset Date").
(e) After the occurrence of (i) a Sale Event, (ii) the
sale of all Common Stock being held in the Escrow Account as of
such Sale Event and (iii) the Reset Date, the foregoing
provisions of this subsection 5.9 shall be applicable as if a
Sale Event had never occurred, so that, among other things, (A)
the Borrower will be permitted to borrow for any of the purposes
permitted hereunder up to the Maximum Commitment Amount and (B)
the aggregate amount of shares of Common Stock delivered from
time to time into the Escrow Account for purposes of clause (i)
of the first sentence of paragraph (d) of this subsection shall
be deemed to equal the amount therein on the Reset Date and, to
the extent the number of such shares is less than 52,500,000, the
Borrower will again be entitled to contribute up to such amount
in the aggregate.
(f) On the Termination Date (or on any other date on
which the Loans are accelerated or otherwise become due) and
without limiting any of the other undertakings of the Borrower
hereunder, the Borrower shall have deposited in the Escrow
Account Common Stock which, when sold, will provide Net Cash
Proceeds sufficient to repay all outstanding Loans and all
accrued interest thereon and all other amounts owing to the
Lenders and the Administrative Agent hereunder (to the extent not
otherwise repaid); compliance with the foregoing will be
determined on the basis of the actual proceeds received from any
such sales of Common Stock.
5.10 Directions to Escrow Agent; Release of Escrowed
Stock. (a) So long as no Event of Default has occurred and is
then continuing, the Borrower may obtain the release to it or its
order of Escrowed Stock by delivering a written request to the
Escrow Agent with a copy to the Administrative Agent. Such
49
written request shall contain a certification that no Event of
Default has occurred and that the requested release is permitted
by the terms hereof, and shall set forth in reasonable detail the
calculation of (i) the Current Reg. U Loan Value of the Escrowed
Stock prior to any such release, (ii) the Current Reg. U Loan
Value of the remaining Escrowed Stock and (iii) the Base Maximum
Commitment Amount before and after giving effect to any such
release. Upon the release of any Escrowed Stock to the Borrower
or its order pursuant to paragraph (a) or (b) of this subsection
and if the Borrower intends to satisfy any prepayment obligation
under subsection 2.6(c) that arises from the release of such
Escrowed Stock, the Borrower shall use its reasonable best
efforts to immediately sell such Escrowed Stock (or the portion
thereof required to discharge its obligation under subsection
2.6(c)), and agrees that any such sale shall be in consideration
of a concurrent transfer of cash to the Borrower.
(b) If an Event of Default has occurred and is
continuing, (i) the Borrower may obtain the release to it or its
order of Escrowed Stock only with the written consent of the
Administrative Agent and (ii) the Administrative Agent may
deliver to the Escrow Agent a Blocking Notice (as defined in the
Escrow Agreement); provided that prior to delivering a Blocking
Notice to the Escrow Agent the Administrative Agent shall, unless
stayed, prohibited or otherwise prevented by applicable law or
otherwise, notify the Borrower at least one Business Day prior
thereto of its intent to deliver a Blocking Notice.
(c) If an Event of Default has occurred and is
continuing or if any Loans are outstanding following the
Termination Date or any interest or other amounts owing to the
Lenders or the Administrative Agent hereunder remain unpaid
following the Termination Date, the Administrative Agent shall
have the right to direct the Escrow Agent to deliver to a buyer
(or its nominee or agent), in a sale effected at the direction of
the Administrative Agent, such number of shares of the Escrowed
Stock (which in the case of a failure to maintain compliance with
the Ratios will be only that amount necessary when sold pursuant
to the terms of the Escrow Agreement to return to compliance as
of the immediately preceding Valuation Date) as are necessary for
the Administrative Agent to sell in order to generate Net Cash
Proceeds equal to all amounts then owing hereunder and to use the
proceeds thereof to repay such amounts. All proceeds received in
respect of Escrowed Stock sold at the direction of the
Administrative Agent shall be applied to the payment of the Loans
and other amounts owing to the Administrative Agent and the
Lenders hereunder and under any other Loan Documents in such
order as the Administrative Agent shall direct.
50
(d) All rights and remedies provided to the
Administrative Agent under the Escrow Agreement are subject to
the terms of this Agreement.
5.11 Stock Option Plans. Comply with, and satisfy
when due, all obligations relating to or arising under the
Borrower's stock option plans pursuant to which Options are
outstanding.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender
or the Administrative Agent hereunder or under any other Loan
Document, the Borrower shall not and, in the case of subsection
6.1, shall not permit any of its Subsidiaries to and, in the case
of subsection 6.4, shall not permit any of its Material
Subsidiaries to, directly or indirectly:
6.1 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any Escrowed Stock or the exercise
price of the Options (or the cash proceeds to be received by or
on behalf of the Borrower from the exercise of the Options)
except for Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the
books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP.
6.2 Limitation on Fundamental Changes. In the case of
the Borrower only, and except as contemplated by subsection 9.7,
enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation
or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property,
business or assets except the Borrower may be merged or
consolidated with any Person provided that (a) immediately after
giving effect to such merger or consolidation, no Default or
Event of Default shall have occurred and be continuing or would
result therefrom and (b) the Borrower shall be the continuing or
surviving corporation (or, if the Borrower shall not be the
continuing or surviving corporation, the continuing or surviving
corporation shall assume the obligations of the Borrower
hereunder on terms satisfactory to the Administrative Agent).
6.3 Limitation on Sale of Assets. In the case of the
Borrower only, convey, sell, lease, assign, transfer or otherwise
dispose of all or substantially all of its property, business or
assets, whether in a single transaction or a series of related
51
transactions except in a transaction in which the acquiring
corporation assumes the obligations of the Borrower hereunder
pursuant to an agreement satisfactory to the Administrative Agent
and which does not otherwise result in a Default or an Event of
Default.
6.4 Change in Business. Alter in a fundamental and
substantial manner the character or scope of the businesses of
the Borrower and its Subsidiaries taken as a whole from that
conducted by its respective businesses immediately prior to the
Closing Date.
SECTION 7. EVENTS OF DEFAULT
7.1 Events of Default. If any of the following events
shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of
any Loan when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on
any Loan, or any other amount payable hereunder, within five
days, but in no event less than three Business Days, after
any such interest or other amount becomes due in accordance
with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made
by the Borrower herein or in any other Loan Document or
which is contained in any certificate, document or financial
or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan
Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or
performance of any of its Undertakings (other than with
respect to Section 5 of the Escrow Agreement) or any
agreement contained in Section 6; or
(d) The Borrower shall default in the observance or
performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided
in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days;
or
(e) The Borrower or any of its Subsidiaries shall
default in any payment of principal of or interest on any
Indebtedness (other than the Loans) or in the payment of any
Guarantee Obligation when due (whether at the stated
52
maturity, upon acceleration, or otherwise) beyond the period
of grace, if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was
created; provided, however, that no Default or Event of
Default shall exist under this paragraph unless the
aggregate amount of Indebtedness and/or Guarantee
Obligations in respect of which any default referred to in
this paragraph shall have occurred shall be equal to at
least $10,000,000, individually, or $50,000,000 in the
aggregate; or
(f) (i) The Borrower or any of its Material
Subsidiaries shall commence any case, proceeding or other
action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its
assets, or the Borrower or any of its Material Subsidiaries
shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the
Borrower or any of its Material Subsidiaries any case,
proceeding or other action of a nature referred to in clause
(i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period
of 60 days; or (iii) there shall be commenced against the
Borrower or any of its Material Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not
have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the
Borrower or any of its Material Subsidiaries shall take any
action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower or
any of its Material Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
(g) (i) Any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended) (A) shall have acquired beneficial
53
ownership of securities (including options) having a
majority of the ordinary voting power in the election of
directors of the Borrower or (B) shall obtain the power
(whether or not exercised) to elect a majority of the
Borrower's directors or (ii) the Board of Directors of the
Borrower shall not consist of a majority of Continuing
Directors; "Continuing Directors" shall mean the directors
of the Borrower on the Closing Date and each other director,
if such other director's nomination for election to the
Board of Directors of the Borrower is recommended by a
majority of the then Continuing Directors;
then, and in any such event, but subject to the limitations with
respect to recourse set forth in subsection 2.5(f), (A) if such
event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) of this Section with respect to the Borrower,
automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement shall immediately become due
and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with
the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall,
by notice to the Borrower, declare the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this
Agreement to be due and payable forthwith, whereupon the same
shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
7.2 Special Remedy. If the Borrower shall fail to
perform, including as a result of applicable bankruptcy law or
otherwise, any of its Undertakings (taking into account the time
periods provided for herein for such performance) and, as a
result thereof, the Loans shall not be paid in full, then the
Repayment Amount shall become fully recourse to the Borrower, and
the Repayment Amount and all other amounts owing to the
Administrative Agent and the Lenders shall be immediately due and
payable.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the agent of
54
such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative
Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent
may execute any of its duties under this Agreement and the other
Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i)
liable to any Lender for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except for its or such
Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement
or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower.
8.4 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution,
55
notice, consent, certificate, affidavit, letter, telecopy, telex
or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it
deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Majority Lenders, and such
request and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future holders of
the Loans.
8.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives
such a notice, the Administrative Agent shall give notice thereof
to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Lenders; provided that unless
and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the
affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any
56
Lender. Each Lender represents to the Administrative Agent 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 appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of
the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon
the Administrative Agent, any Affiliate of the Administrative
Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan
Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business,
operations, property, condition (financial or otherwise),
prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
8.7 Indemnification. The Lenders agree to indemnify
the Administrative Agent in its capacity as such (to the extent
not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages in effect on the date on which
indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation,
at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any
way relating to or arising out of, the Commitments, this
Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection
with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct.
The agreements in this subsection shall survive the payment of
the Loans and all other amounts payable hereunder.
57
8.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business
with the Borrower as though the Administrative Agent were not the
Administrative Agent hereunder and under the other Loan
Documents. With respect to the Loans made by it, the
Administrative Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent,
and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent upon 10
days' notice to the Lenders. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the other
Loan Documents, then the Majority Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which
successor agent (provided that it shall have been approved by the
Borrower), shall succeed to the rights, powers and duties of the
Administrative Agent hereunder. Effective upon such appointment
and approval, the term "Administrative Agent" shall mean such
successor agent, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this
Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the
provisions of this Section 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan
Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement
nor any other Loan Document, nor any terms hereof or thereof may
be amended, supplemented or modified except in accordance with
the provisions of this subsection. The Majority Lenders may, or,
with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (a) enter into with
the Borrower written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the
Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Majority Lenders or the Administrative Agent,
as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Loan Documents or any
58
Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the
expiration date of any Lender's Commitment, in each case without
the consent of each Lender affected thereby, or (ii) amend,
modify or waive any provision of this subsection or subsections
2.5(f), 5.9, 5.10 or 7.2 or reduce the percentage specified in
the definition of Majority Lenders, or consent to the assignment
or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents or reduce the
Ratios required to be maintained by the Borrower hereunder or
amend the definition of Undertakings, in each case without the
written consent of all the Lenders, or (iii) amend, modify or
waive any provision of Section 8 without the written consent of
the then Administrative Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each
of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Borrower, the Lenders and
the Administrative Agent shall be restored to their former
positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; no such waiver shall
extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing (including by facsimile transmission) and, unless
otherwise expressly provided herein, shall be deemed to have been
duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after
being deposited in the mails, postage prepaid, or (c) in the case
of delivery by facsimile transmission, when sent and receipt has
been confirmed, addressed as follows in the case of the Borrower
and the Administrative Agent, and as set forth in Schedule I in
the case of the other parties hereto, or to such other address as
may be hereafter notified by the respective parties hereto:
The Borrower:
75 Rockefeller Plaza
New York, New York 10019
Attention: Chief Financial Officer
Fax: (212) 307-0126
and
59
Attention: General Counsel
Fax: (212) 956-7281
with copies to
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Attention: William P. Rogers, Jr., Esq.
Fax: (212) 474-3700
The Administrative
Agent: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Dorothy Vena
Fax: (212) 270-7904
provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to subsection 2.2,
2.4, 2.6, 2.7, or 2.12 shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the
Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower
agrees (a) to pay or reimburse the Administrative Agent for all
its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of,
and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and
60
thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay
or reimburse each Lender and the Administrative Agent for all its
reasonable costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement,
the other Loan Documents and any such other documents, including,
without limitation, the reasonable fees and disbursements of
counsel (including the allocated fees and expenses of in-house
counsel) to each Lender and of counsel to the Administrative
Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent (and their respective affiliates, officers,
directors, employees, advisors and agents) harmless from, any and
all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise
and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement,
the other Loan Documents and any such other documents, and (d) to
pay, indemnify, and hold each Lender and the Administrative Agent
harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan
Documents or the use or the proposed use of the proceeds of the
Loans and any such other documents, including, without
limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this
clause (d), collectively, the "indemnified liabilities"),
provided that the Borrower shall have no obligation hereunder to
the Administrative Agent or any Lender with respect to
indemnified liabilities arising from the gross negligence or
willful misconduct of the Administrative Agent or any such
Lender. The agreements in this subsection shall survive
repayment of the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure
to the benefit of the Borrower, the Lenders, the Administrative
Agent and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written
consent of each Lender except as specified in subsection 9.7.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
61
law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to
such Lender, the Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any
such Loan for all purposes under this Agreement and the other
Loan Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. No Lender shall be
entitled to create in favor of any Participant, in the
participation agreement pursuant to which such Participant's
participating interest shall be created or otherwise, any right
to vote on, consent to or approve any matter relating to this
Agreement or any other Loan Document except for those specified
in clauses (i) and (ii) of the proviso to subsection 9.1. The
Borrower agrees that if amounts outstanding under this Agreement
are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of
Default, each Participant shall, to the maximum extent permitted
by applicable law, be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided
in subsection 9.9(a) as fully as if it were a Lender hereunder.
The Borrower also agrees that each Participant shall be entitled
to the benefits of subsections 2.14, 2.15 and 2.16 with respect
to its participation in the Commitments and the Loans outstanding
from time to time as if it was a Lender; provided that, in the
case of subsection 2.15, such Participant shall have complied
with the requirements of said subsection and provided, further,
that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender
would have been entitled to receive in respect of the amount of
the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time and from time to time assign to any Lender or
any affiliate thereof or, with the consent of the Borrower and
the Administrative Agent (which in each case shall not be
unreasonably withheld), to an additional bank or financial
62
institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit F, executed by such Assignee, such assigning
Lender (and, in the case of an Assignee that is not then a Lender
or an affiliate thereof, by the Borrower and the Administrative
Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the
case of any such assignment to an additional bank or financial
institution, the sum of the aggregate principal amount of the
Loans and the aggregate amount of the Available Commitments being
assigned and, if such assignment is of less than all of the
rights and obligations of the assigning Lender, the sum of the
aggregate principal amount of the Loans and the aggregate amount
of the Available Commitment remaining with the assigning Lender
are each not less than $10,000,000 (or such lesser amount as may
be agreed to by the Borrower and the Administrative Agent). Upon
such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment
and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment as set forth therein, and (y) the assigning
Lender thereunder shall, to the extent provided in 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 assigning
Lender shall cease to be a party hereto). Notwithstanding any
provision of this paragraph (c) and paragraph (e) of this
subsection, the consent of the Borrower shall not be required,
and, unless requested by the Assignee and/or the assigning
Lender, new Notes shall not be required to be executed and
delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in subsection 7.1(f) shall
have occurred and be continuing.
(d) The Administrative Agent, on behalf of the
Borrower, shall maintain at the address of the Administrative
Agent referred to in subsection 9.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower,
the Administrative Agent and the Lenders may (and, in the case of
any Loan or other obligation hereunder not evidenced by a Note,
shall) treat each Person whose name is recorded in the Register
as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan
63
Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not
evidenced by a Note shall be effective only upon appropriate
entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case
of an Assignee that is not then a Lender or an affiliate thereof,
by the Borrower and the Administrative Agent) together with
payment to the Administrative Agent of a registration and
processing fee of $3,000, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information
contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to
any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such
Lender's possession concerning the Borrower and its Affiliates
which has been delivered to such Lender by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this subsection
concerning assignments of Loans and Notes relate only to absolute
assignments and that such provisions do not prohibit assignments
creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
(h) Each Lender making any sale or assignment
permitted by this subsection agrees to deliver to the Participant
or Assignee, as the case may be, copies of all Form U-1's
theretofore delivered to it hereunder.
9.7 Consent to Assignment to TW Inc.. (a) Upon the
consummation of the acquisition of Turner Broadcasting System,
Inc. by Time Warner Inc. the Common Stock will be exchanged for
common stock of TW Inc., a Delaware corporation, and Time Warner
Inc. will become a wholly-owned Subsidiary of TW Inc. Effective
with the consummation of such transaction, the Lenders hereby
consent to the assignment to and assumption by TW Inc. of the
obligations of the Borrower hereunder.
64
(b) Effective upon the consummation of such
acquisition and the Administrative Agent, the Lenders and the
Escrow Agent receiving written notice from Time Warner Inc. and
TW Inc. that Time Warner Inc. is a wholly-owned subsidiary of TW
Inc., TW Inc. hereby (a) assumes all obligations of Time Warner
Inc. under this Agreement and each other Loan Document, (b)
agrees that it shall become the "Borrower" hereunder and under
each other Loan Document and the "Depositor" under the Escrow
Agreement, and shall be bound by the provisions hereof and
thereof as if it were the "Borrower" or the "Depositor", as the
case may be, as the original signatory hereto and thereto, (c)
agrees that all references to the "Borrower" herein or in any
other Loan Document and to the "Depositor" in the Escrow
Agreement shall be deemed to be references to TW Inc. and its
permitted successors and assigns and (d) agrees that all
references to Common Stock and Options shall be deemed to refer
to the equivalent interests of TW Inc. Upon TW Inc.'s effective
assumption of (x) the Borrower's obligations hereunder and under
each other Loan Document and (y) the Depositor's obligations
under the Escrow Agreement, Time Warner Inc. shall automatically
be released from its obligations under this Agreement and each
other Loan Document.
9.8 Adjustments to Number of Shares of Common Stock
and Stock Price. (a) In case the Borrower shall (i) pay a
dividend or make a distribution on the Common Stock in shares of
its Capital Stock or reclassify its Common Stock, (ii) subdivide
the outstanding Common Stock into a greater number of shares,
(iii) combine the outstanding Common Stock into a smaller number
of shares or (iv) distribute to the holders of its shares of
Common Stock any assets or property, including debt or equity
securities (excluding (i) distributions in shares of its Capital
Stock and (ii) regularly scheduled cash dividends payable on
shares of Common Stock), the $24 per share price specified in
subsection 2.1, the $20 per share price specified in subsection
5.9 and the 52,500,000 shares of Common Stock referred to in
subsection 5.9 shall be adjusted so that such figures represent
the equivalent amounts after the happening of any of the events
described above, and/or the definition of "Common Stock"
contained herein shall be modified to include therein any such
assets or property that are also made subject to the Options,
provided that, if any such assets or property has no loan value
for purposes of Regulation U, such assets or property shall not
be included in determining Base Maximum Commitment Amount,
Current Reg. U Loan Value, Notional Reduction Amount, Surplus
Escrowed Stock and Trigger Event. An adjustment made pursuant to
this subsection shall become effective immediately after the
record date in the case of a dividend, and shall become effective
immediately after the effective date in the case of a
subdivision, combination or reclassification.
65
(b) No adjustments specified in subsection 9.8(a)
shall be required unless such adjustment would require an
increase or decrease of at least 1% in the amounts in question;
provided, however, that any adjustments which by reason of this
subsection are not required to be made shall be carried forward
and taken into account in any subsequent adjustment.
(c) Whenever an adjustment is required to be made as
herein provided, the Borrower shall deliver a certificate of a
Responsible Officer to the Administrative Agent, setting forth in
reasonable detail the relevant calculations for such adjustment
and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment, absent manifest error.
9.9 Adjustments; Set-off. (a) If any Lender (a
"benefitted Lender") shall at any time receive any payment of all
or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7.1(f), or otherwise), in a
greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other
Lender's Loans, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loans, or shall
provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to
cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right,
without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured
or unmatured, at any time held or owing by such Lender or any
branch or agency thereof to or for the credit or the account of
the Borrower. Each Lender agrees promptly to notify the Borrower
66
and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off
and application.
9.10 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts (including by facsimile transmission), and
all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
9.11 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.12 Integration. This Agreement and the other Loan
Documents represent the entire agreement of the Borrower, the
Administrative Agent and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof or thereof
not expressly set forth or referred to herein or in the other
Loan Documents.
9.13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
9.14 Submission To Jurisdiction; Waivers. The
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the
other Loan Documents to which it is a party, or for
recognition and enforcement of any judgement in respect
thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the
United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
67
proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to the Borrower at its
address set forth in subsection 9.2 or at such other address
of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted
by law or shall limit the right to sue in any other
jurisdiction; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this subsection any
special, exemplary, punitive or consequential damages.
9.15 Acknowledgements. The Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents;
(b) neither the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to the Borrower
arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between
Administrative Agent and Lenders, on the one hand, and the
Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among
the Borrower and the Lenders.
9.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
68
SECTION 10. PROCEDURES TO INCREASE BASE COMMITMENT
10.1 Increase in Base Maximum Commitment Amount. (a)
The Borrower shall have the right, upon not less than two
Business Days' notice to the Administrative Agent (who will
thereafter promptly notify the Lenders thereof), and upon
satisfaction of the conditions set forth in subsection 10.1(b),
to increase the Base Maximum Commitment Amount by the amount
specified in such notice, provided that the amount of such
increase shall not exceed the lesser of (i) the excess of the
Maximum Commitment Amount over the then Base Maximum Commitment
Amount and (ii) the Current Reg. U Loan Value of the Surplus
Escrowed Stock (including any Escrowed Stock to be deposited in
the Escrow Account concurrently with the effectiveness of such
increase) as of the effective date of such increase.
(b) The right of the Borrower to increase the Base
Maximum Commitment Amount is subject to the satisfaction of the
condition precedent that the Administrative Agent shall
have received a Form F.R. U-1 for each Lender, duly completed and
satisfactory to such Lender and in conformity with Regulation U,
which form shall treat the requested increase in Base Maximum
Commitment Amount as a new extension of a revolving credit
facility to the Borrower as of the effective date of the
requested increase.
(c) Notwithstanding the provisions of subsection
5.9(d), the Borrower shall at all times be entitled to deposit
certificates representing additional Common Stock into the Escrow
Account following a Sale Event and prior to the sale of all
Common Stock held in the Escrow Account as of the Sale Event to
the extent necessary to increase the Base Maximum Commitment
Amount so that the Borrower shall be entitled to borrow the full
amount that it could have borrowed under the Borrowing Base
Calculation without regard to such deposit of additional shares.
Notwithstanding anything to the contrary contained in this
Agreement, after a Sale Event and prior to the occurrence of the
events described in clause (ii) of subsection 5.9(e), all
certificates representing Common Stock that are deposited into
the Escrow Account pursuant to this subsection 10.1(c) shall be
excluded in the calculation of the Ratios. Following the sale of
an amount of Escrowed Stock equal to the amount held in the
Escrow Account as of the relevant Sale Event, all such shares so
deposited shall be included in the Borrowing Base Calculation.
10.2 Individual Lender Responsibility. Each Lender
shall be responsible for its own compliance with and
administration of the provisions of subsection 10.1(b), and the
Administrative Agent shall have no responsibility for any
determinations made or to be made by any Lender pursuant to this
Section.
69
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
TIME WARNER INC.
By:
Title:
CHEMICAL BANK,
as Administrative Agent and
as a Lender
By:
Title:
70
BANK OF AMERICA NT & SA
By:
Title:
BANK OF BOSTON
By:
Title:
BANK OF MONTREAL
By:
Title:
THE BANK OF NEW YORK
By:
Title:
THE BANK OF NOVA SCOTIA
By:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
Title:
BANQUE NATIONALE DE PARIS
By:
Title:
By:
Title:
71
BANQUE PARIBAS
By:
Title:
BARCLAYS BANK PLC
By:
Title:
CIBC INC.
By:
Title:
CITIBANK, N.A.
By:
Title:
COMMERZBANK AG
By:
Title:
By:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Title:
72
CREDIT SUISSE
By:
Title:
By:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
By:
Title:
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
By:
Title:
MELLON BANK, N.A.
By:
Title:
MITSUBISHI TRUST & BANKING
By:
Title:
73
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:
Title:
NATIONSBANK, N.A.
By:
Title:
ROYAL BANK OF CANADA
By:
Title:
THE SAKURA BANK, LIMITED
By:
Title:
THE SANWA BANK, LIMITED
By:
Title:
SOCIETE GENERALE
By:
Title:
THE SUMITOMO BANK, LTD., NEW YORK BRANCH
By:
Title:
74
THE TOKAI BANK, LTD.
By:
Title:
CONSENTED AND AGREED TO
FOR PURPOSES OF SUBSECTION 9.7:
TW INC.
By:
Title:
EXHIBIT A
[FORM OF] NOTE
$__________ New York, New York
______________, 199
FOR VALUE RECEIVED, the undersigned, Time Warner Inc., a
Delaware corporation (together with its successors and permitted
assigns, the "Borrower", except that after the assumption
provided for in subsection 9.7 of the Credit Agreement, the
"Borrower" shall mean TW Inc. and its successors and permitted
assigns), hereby unconditionally promises to pay to the order of
____________ (the "Lender") at the office of Chemical Bank,
located at 270 Park Avenue, New York, New York 10017, in lawful
money of the United States of America and in immediately
available funds, on the Termination Date (as defined in the
Credit Agreement referred to below) the principal amount of (a)
________________ DOLLARS ($__________), or, if less, (b) the
aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to subsection 2.1 of the Credit
Agreement referred to below. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the rates and on
the dates specified in subsection 2.9 of the Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a
part hereof the date, Type and amount of each Loan made pursuant
to the Credit Agreement and the date and amount of each payment
or prepayment of principal thereof, each continuation thereof,
each conversion of all or a portion thereof to another Type and,
in the case of Eurodollar Loans, the length of each Interest
Period with respect thereto. Each such endorsement shall
constitute prima facie evidence of the accuracy of the
information endorsed.
The failure to make any such endorsement shall not affect
the obligations of the Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Credit
Agreement, dated as of May 23, 1996 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the Lender, the other banks and financial
institutions from time to time parties thereto and Chemical Bank,
as administrative agent, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit
Agreement.
2
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable,
all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, protest and all
other notices of any kind, except as may be provided in
subsection 7.1 of the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them
in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
TIME WARNER INC.
By: ____________________
Name:
Title:
Schedule A
To Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
Amount of Principal
Amount of ABR Amount Converted of ABR Loans
Date Loans to ABR Loans Repaid
Amount of ABR Loans
Converted to Eurodollar Unpaid Principal Notations
Loans Balance of ABR Loans Made By
Schedule B
To Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
Amount Converted Interest Paid and
Amount of to or Continued as Eurodollar Rate with
Date Eurodollar Loans Eurodollar Loans Respect Thereto
Amount of Principal Amount of Eurodollar Unpaid Principal
of Eurodollar Loans Loans Converted to Balance of Notations
Repaid ABR Loans Eurodollar Loans Made By
EXHIBIT C
[FORM OF]
BORROWING CERTIFICATE
Reference is made to the Credit Agreement, dated as of May
23, 1996 (the "Credit Agreement"), among Time Warner Inc., a
Delaware corporation (together with its successors and permitted
assigns, the "Borrower", except that after the assumption
provided for in subsection 9.7 of the Credit Agreement, the
"Borrower" shall mean TW Inc. and its successors and permitted
assigns), the several banks and other financial institutions from
time to time parties thereto (collectively, the "Lenders"), and
Chemical Bank, a New York banking corporation, as Administrative
Agent for the Lenders (in such capacity, the "Administrative
Agent"). Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
Pursuant to subsection 4.1(b) of the Credit Agreement, the
undersigned, Vice President and Assistant Secretary of the
Borrower, hereby certify as follows:
1. Each of the representations and warranties made by
the Borrower in or pursuant to any Loan Document or in or
pursuant to any certificate, document or financial or other
statement furnished by or on behalf of the Borrower pursuant
to or in connection with any Loan Document, is true and
correct in all material respects on and as of the date
hereof with the same effect as if made on the date hereof
except for representations and warranties stated to relate
to a specific earlier date, in which case such
representations and warranties were true and correct in all
material respects as of such earlier date;
2. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to
the Loans to be made on the date hereof;
3. There are no liquidation or dissolution proceedings
pending or to my knowledge threatened against the Borrower
nor has any other event occurred affecting or threatening
the corporate existence of the Borrower, except as
contemplated by subsection 9.7 of the Credit Agreement;
4. The Borrower is duly organized, validly existing
and in good standing under the laws of the State of Delaware;
2
5. Attached hereto as Exhibit A is a copy of a
Certificate of the Secretary of State of Delaware, dated
reasonably close to the Closing Date and certifying that the
Borrower is duly incorporated and in good standing under the
laws of Delaware;
6. As of the date hereof, (a) the amount of the
"present fair saleable value" of the assets of the Borrower
exceeds the amount that will be required to pay the probable
"liabilities of the Borrower, contingent or otherwise" on
its debts as they become absolute and matured (as such
quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the
insolvency of debtors), (b) the fair value of the assets of
the Borrower is greater than the total amount of
liabilities, including, without limitation, contingent
liabilities of the Borrower, (c) the Borrower does not, nor
does it intend to, engage in business or any transaction for
which the Borrower's property would constitute an
unreasonably small amount of capital, and (d) the Borrower
is able to pay its debts as they mature and does not intend
to incur debts or liabilities beyond the Borrower's ability
to pay such debts and liabilities as they mature, taking
into account the timing of and amounts of cash to be
received by the Borrower and the timing of and amounts of
cash to be payable on or in respect of such debts or
liabilities, in each case after giving effect to the
transactions contemplated by the Credit Agreement and the
Loans to be made on Closing Date and to the application of
the proceeds of such Loans;
7. As of May __, 1996 (the Trading Day immediately
preceding the date hereof), the current market price per
share (as determined in accordance with the provisions set
forth in the definition of Loan Value contained in
subsection 1.1 of the Credit Agreement) of the Common Stock
is $___ per share;
8. Stock certificates representing [________] shares of
Common Stock (together with an undated stock power for each
such certificate executed in blank by a duly authorized
officer of the Borrower) have been delivered to the Escrow
Agent;
9. The Aggregate Loan Value of the Escrowed Stock
referred to in paragraph 8 (based upon the current market
price per share set forth in paragraph 7) is [______], which
amount is at least two times the Maximum Commitment Amount
in effect as of the date hereof;
3
10. The Aggregate Loan Value of the Options set forth
on Schedule II to the Credit Agreement (calculated in
accordance with the provisions set forth in the definition
of Aggregate Loan Value contained in subsection 1.1 of the
Credit Agreement as of the date set forth in such Schedule)
is [______];
11. The aggregate amount of the Loans requested to be
made by the Lenders on the date hereof is [______];
12. As of the date hereof, the Interest Component is
[______];
13. The ratio of (x) the sum of (i) the Aggregate Loan
Value of the Escrowed Stock (as set forth in paragraph 9)
and (ii) the Aggregate Loan Value of the Options (as set
forth in paragraph 10) to (y) the Covered Amount (calculated
as the sum of the amounts indicated in paragraphs 11 and 12)
is ___ to ___; and
14. The ratio of (x) the Aggregate Loan Value of the
Escrowed Stock (as set forth in paragraph 9) to (y) the
Covered Amount is ___ to ___.
IN WITNESS WHEREOF, each of the undersigned has executed and
delivered this Borrowing Certificate on the [ day of May 1996]
[Insert Closing Date].
TIME WARNER INC.
By: ______________________
Name:
Title: Vice President
By: ______________________
Name:
Title: Assistant Secretary
EXHIBIT F
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of May
23, 1996 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Time Warner Inc., a
Delaware corporation (together with its successors and permitted
assigns, the "Borrower", except that after the assumption
provided for in subsection 9.7 of the Credit Agreement, the
"Borrower" shall mean TW Inc. and its successors and permitted
assigns), the Lenders named therein and Chemical Bank, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the
"Assignor") and the Assignee identified on Schedule l hereto (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee
hereby irrevocably purchases and assumes from the Assignor
without recourse to the Assignor, as of the Effective Date (as
defined below), the interest described in Schedule 1 hereto (the
"Assigned Interest") in and to the Assignor's rights and
obligations under the Credit Agreement and the other Loan
Documents as set forth on Schedule 1 hereto (the "Assigned
Facility"), in a principal amount for such Assigned Facility as
set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto or with respect to the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant
thereto, other than that the Assignor has not created any adverse
claim upon the interest being assigned by it hereunder and that
such interest is free and clear of any such adverse claim; (b)
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower, any of
its Subsidiaries or any other obligor or the performance or
observance by the Borrower, any of its Subsidiaries or any other
obligor of any of their respective obligations under the Credit
Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches
2
any Note held by it evidencing the Assigned Facility and (i)
requests that the Administrative Agent, upon request by the
Assignee, exchange the attached Note for a new Note or Notes
payable to the Assignee and (ii) if the Assignor has retained any
interest in the Assigned Facility, requests that the
Administrative Agent exchange the attached Note for a new Note or
Notes payable to the Assignor, in each case in amounts which
reflect the assignment being made hereby (and after giving effect
to any other assignments which have become effective on the
Effective Date).
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance;
(b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered
pursuant to subsection 3.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without
reliance upon the Assignor, the Administrative Agent 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 the Credit
Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers and discretion under
the Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto as
are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e)
agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United
States, its obligation pursuant to subsection 2.15(d) of the
Credit Agreement.
4. The effective date of this Assignment and Acceptance
shall be the Effective Date of Assignment described in Schedule 1
hereto (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective
as of the Effective Date (which shall not, unless otherwise
agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by
the Administrative Agent).
3
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the
Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent
for periods prior to the Effective Date or with respect to the
making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the other Loan
Documents and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first
above written by their respective duly authorized officers on
Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor: ___________________
Name of Assignee: ___________________
Effective Date of Assignment: __________________
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned 1/
$_______________ ____.______________%
[Name of Assignor] [Name of Assignee]
By:___________________ By:___________________
Name: Name:
Title: Title:
Accepted [and Consented To]:
CHEMICAL BANK, as
Administrative Agent
By: ____________________
Name:
Title:
[Consented To:
TIME WARNER INC.
By:___________________
Name:
Title:]
_________________________________________________
1/ Calculate the Commitment Percentage that is assigned to at
least 15 decimal places and show as a percentage of the
aggregate commitments of all Lenders.
SCHEDULE I
CREDIT AGREEMENT
COMMITMENTS AND ADDRESSES FOR NOTICES
NAME AND ADDRESS FOR NOTICES REVOLVING COMMITMENT AAMOUNT
AND COMMITMENT PERCENTAGE
CHEMICAL BANK Commitment Amount: $30,400,000
270 Park Avenue
New York, NY 10017 Commitment Percentage: 4.053333333
Attn: Dorothy Vena
Tel: (212) 270-4048
Fax: (212) 270-7904
BANK OF AMERICA NT & SA Commitment Amount: $25,700,000
335 Madison Avenue
New York, NY 10017 Commitment Percentage: 3.426666667
Attn: Matthew Flynn
Tel: (212) 503-8372
Fax: (212) 503-7173
BANK OF MONTREAL Commitment Amount: $25,700,000
430 Park Avenue, 16th Floor
New York, NY 10022 Commitment Percentage: 3.426666667
Attn: Allegra Griffiths
Tel: (212) 605-1426
Fax: (212) 605-1648
THE BANK OF NEW YORK Commitment Amount: $25,700,000
One Wall Street, 16th Floor
New York, NY 10266 Commitment Percentage: 3.426666667
Attn: Brendan Nedzi
Tel: (212) 635-8628
Fax: (212) 635-8593
THE BANK OF NOVA SCOTIA Commitment Amount: $25,700,000
One Liberty Plaza, 26th Floor
New York, NY 10006 Commitment Percentage: 3.426666667
Attn: Vincent Fitzgerald
Tel: (212) 225-5042
Fax: (212) 225-5091
BANK OF TOKYO-MITSUBUISHI
TRUST COMPANY Commitment Amount: $25,700,000
1251 Avenue of the Americas
New York, NY 10116-3138 Commitment Percentage: 3.426666667
Attn: John Judge
Tel: (212) 782-4383
FAX: (212) 782-6442
Page 2
BANQUE NATIONALE DE PARIS Commitment Amount: $25,700,000
499 Park Avenue
New York, NY 10022 Commitment Percentage: 3.426666667
Attn: Nuala Marley
Tel: (212)-415-9726
Fax: (212) 415-9695
BANQUE PARIBAS Commitment Amount: $25,700,000
787 Seventh Avenue
New York, NY 10019 Commitment Percentage: 3.426666667
Attn: Philippe Vaurchex
Tel: (212) 841-2226
Fax: (212) 841-2369
BARCLAYS BANK PLC Commitment Amount: $25,700,000
388 Market Street
San Francisco, CA 94111 Commitment Percentage: 3.426666667
Attn: James Tan
Tel: (415) 765-4718
Fax: (415) 765-4760
CIBC INC. Commitment Amount: $25,700,000
425 Lexington Avenue
New York, NY 10017 Commitment Percentage: 3.426666667
Attn: Matthew Jones
Tel: (212) 856-3714
Fax: (212) 856-3558
CITIBANK, N.A. Commitment Amount: $25,700,000
4th Floor/Zone 16
399 Park Avenue Commitment Percentage: 3.426666667
New York, NY 10043
Attn: Mary E. Thomas
Tel: (212) 559-3094
Fax: (212) 793-6873
COMMERZBANK AG Commitment Amount: $25,700,000
2 World Financial Center
New York, NY 10261 Commitment Percentage: 3.426666667
Attn: Robert Donohue
Tel: (212) 266-7336
Fax: (212) 266-7374
CREDIT LYONNAIS NEW YORK BRANCH Commitment Amount: $25,700,000
1301 Avenue of the Americas
New York, NY 10019 Commitment Percentage: 3.426666667
Attn: Steve Levi
Tel: (212) 261-7324
Fax: (212) 261-3318
Page 3
CREDIT SUISSE Commitment Amount: $25,700,000
12 East 49th Street
New York, NY 10017 Commitment Percentage: 3.426666667
Attn: Ed Barr
Tel: (212) 238-5414
Fax: (212) 238-5439
THE DAI-ICHI KANGYO BANK, LTD. Commitment Amount: $25,700,000
One World Trade Center, Suite 4911
New York, NY 10048 Commitment Percentage: 3.426666667
Attn: Seiji Imai
Tel: (212) 432-8441
Fax: (212) 524-0579
THE FIRST NATIONAL BANK OF BOSTON Commitment Amount: $25,700,000
100 Federal Street
Boston, MA 02110 Commitment Percentage: 3.426666667
Attn: Kathryn Ticknor
Tel: (617) 434-4624
Fax: (617) 434-3401
THE FUJI BANK, LIMITED,
NEW YORK BRANCH Commitment Amount: $25,700,000
Two World Trade Center, 79-81 Floors
New York, NY Commitment Percentage: 3.426666667
Attn: John D. Doyle
Tel: (212) 898-2087
Fax: (212) 912-0516
THE INDUSTRIAL BANK OF JAPAN,
LIMITED Commitment Amount: $25,700,000
245 Park Avenue
New York, NY 10167-0037 Commitment Percentage: 3.42666667
Attn: Akira Yoshida
Tel: (212) 309-6562
Fax: (212) 682-2870
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED Commitment Amount: $25,700,000
165 Broadway, 49th Floor
New York, NY 10008 Commitment Percentage: 3.426666667
Attn: Tetsuya Fukunaga
Tel: (212) 335-4549
Fax: (212) 608-2371
MELLON BANK, N.A. Commitment Amount: $25,700,000
One Mellon Bank Center
Pittsburgh, PA 15286-0001 Commitment Percentage: 3.426666667
Attn: Maribeth Donnelly
Tel: (412) 236-2472
Fax: (412) 234-6375
Page 4
MITSUBISHI TRUST & BANKING Commitment Amount: $25,700,000
520 Madison Avenue, 26th Floor
New York, NY 10022 Commitment Percentage: 3.426666667
Attn: Bea Kossodo
Tel: (212) 891-8454
Fax: (212) 755-2349
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK Commitment Amount: $25,700,000
60 Wall Street
New York, NY 10260-0060 Commitment Percentage: 3.426666667
Attn: George Stapleton
Tel: (212) 648-7831
Fax: (212) 648-5018
NATIONSBANK, N.A. Commitment Amount: $25,700,000
767 Fifth Avenue
New York, NY 10153-0083 Commitment Percentage: 3.426666667
Attn: James Gilland
Tel: (212) 407-5330
Fax: (212) 593-1083
ROYAL BANK OF CANADA Commitment Amount: $25,700,000
Financial Square
New York, NY 10005-3531 Commitment Percentage: 3.426666667
Attn: Barbara Meijer
Tel: (212) 428-6288
Fax: (212) 428-6460
THE SAKURA BANK, LIMITED Commitment Amount: $25,700,000
277 Park Avenue
New York, NY 10172 Commitment Percentage: 3.426666667
Attn: Pierre Vautravers [Fuminori Ohira]
Tel: (212) 756-6820 [(212) 756-6769]
Fax: (212) 888-7651 [(212) 888-7651]
THE SANWA BANK, LIMITED Commitment Amount: $25,700,000
55 East 52nd Street, 26th Floor
New York, NY 10055 Commitment Percentage: 3.426666667
Attn: Joseph Leo
Tel: (212) 339-6205
Fax: (212) 754-1304
SOCIETE GENERALE Commitment Amount: $25,700,000
1221 Avenue of the Americas
New York, NY 10020 Commitment Percentage: 3.426666667
Attn: Mark Vigil
Tel: (212) 278-7350
Fax:
Page 5
THE SUMITOMO BANK, LTD.,
NEW YORK BRANCH Commitment Amount: $25,700,000
277 Park Avenue, 6th Floor
New York, NY 10172 Commitment Percentage: 3.426666667
Attn: Leo Pagarigan
Tel: (212) 224-4118
Fax: (212) 224-5188
THE TOKAI BANK, LTD. Commitment Amount: $25,700,000
55 East 52nd Street, 12th Floor
New York, NY 10055 Commitment Percentage: 3.426666667
Attn: Stuart Schulman
Tel: (212) 339-1117
Fax: (212) 754-2171