MULTI-CURRENCY TERM LOAN AGREEMENT
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THIS MULTI-CURRENCY TERM LOAN AGREEMENT (the "Agreement") is made as of the
12th day of May, 1995, among DENTSPLY LIMITED, a company organized under the
laws of the Cayman Islands (the "Borrower"), the BANKS (as hereinafter defined),
and ABN AMRO BANK N.V., a bank organized under the laws of The Netherlands, in
its capacity as agent for the Banks under this Agreement (hereinafter referred
to in such capacity as the "Agent").
WHEREAS, Borrower desires to borrow funds in Pounds Sterling and Swiss
Francs to finance the acquisition by Borrower (as described in this sentence,
the "Acquisition") of approximately 95% of the outstanding capital stock of
Maillefer Instruments S.A., a company organized under the laws of Switzerland
("Maillefer");
WHEREAS, Borrower and the Banks are parties to a Competitive Advance,
Revolving Credit and Guaranty Agreement, dated as of November 15, 1993, among
Borrower, Banks, other banks named therein, DENTSPLY International Inc., a
Delaware corporation ("DII"), various other subsidiaries of DII, and Chemical
Bank as agent (the "Chemical Agreement"), as amended by a First Amendment to the
Competitive Advance, Revolving Credit and Guaranty Agreement, dated as of
December 23, 1994 (the "First Amendment"), among the same parties (the Chemical
Agreement, as amended solely by the First Amendment, is referred to herein as
the "Syndicated Agreement");
WHEREAS, the Syndicated Agreement does not provide multicurrency term
loans to Borrower;
WHEREAS, Borrower desires to borrow and Banks desire to lend such
funds;
NOW, THEREFORE, intending to be legally bound hereby and incorporating the
above-defined terms herein and in consideration of the foregoing and of the
agreements herein contained, the parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
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1.01 Terms Defined in Syndicated Agreement; Listed Definitions.
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As used herein: (a) unless the context of this Agreement otherwise clearly
requires, capitalized terms not expressly defined herein shall have the
respective meanings ascribed to them by the Syndicated Agreement; and (b) the
following terms shall have the meanings herein specified:
"Affiliate" shall mean, with respect to the Person in question, (a) any
Person (including any member of the immediate family of any such natural
Person) which (i) directly or indirectly beneficially owns or controls 10%
or more of the total voting power of shares of capital stock having the
right to vote for directors under ordinary
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circumstances (if such Person is a corporation), (ii) is a general partner
(if such Person is a partnership) or (iii) is otherwise empowered, by
contract, voting trust or otherwise, to direct the business or affairs, of
such Person and (b) any Person controlling, controlled by or under common
control with any such Person (within the meaning of Rule 405 under the
Securities Act of 1933), and (c) any director, general partner or
executive officer of any such Person.
"Applicable Percentage" shall mean on any date with respect to any
Borrowing Tranche of the Term Loans the applicable percentage set forth in
the table below based upon the Consolidated Interest Coverage Ratio of DII
for the four fiscal quarters immediately preceding such date (determined
in accordance with Subsections 2.06(a) and (c)):
Term Loans Borrowing Tranche Applicable Percentage Table
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If the Applicable Applicable
Consolidated Interest Percentage for
Coverage Ratio is: Term Loans Borrowing Tranches
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Greater than or
equal to 16.0:1.0 .25%
Less than 16.0:1.0
but greater than or
equal to 10.0:1.0 .30%
Less than 10.0:1.0
but greater than or
equal to 6.0:1.0 .40%
Less than 6.0:1.0
but greater than or
equal to 4.0:1.0 .50%
Less than 4.0:1.0 .625%
"Assignment and Acceptance" shall mean an agreement in the form of Exhibit
A entered into pursuant to Subsection 7.07, executed by the assignor,
assignee, and other parties contemplated thereby. "Banks" shall mean the
financial institutions named on Schedule 1.01-A and their respective
successors and assigns as permitted hereunder, each of which is referred
to herein as a "Bank".
"Borrowing Date" shall mean the date on which the Term Loans are made,
which shall be a Business Day occurring no later than the last Business
Day of July , 1995; there shall occur only one Borrowing Date hereunder.
"Borrowing Tranche" shall mean any portion of the Term
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Loans which is denominated in the same Optional Currency and which has the
same Interest Period commencing on the same date; any such portion of the
Term Loans shall constitute one Borrowing Tranche.
"Business Day" shall mean (i) any day other than a Saturday, Sunday, or
other day on which commercial banks in New York City or London are
authorized or required to close by Law and (ii) with respect to matters
relating to a LIBOR Term Loan, an Interest Period, or a notice with
respect thereto, also a day on which dealings in deposits in the relevant
Optional Currency are carried on in the London interbank market, and (iii)
for the purpose of advances or payments in an applicable Optional
Currency, also any day on which banks and foreign exchange markets are
open for business in the principal financial center of the country of such
currency.
"Change in Control" shall mean any circumstance under which DII (together
with any Subsidiary, if any, the capital stock of which is wholly owned by
DII) shall for any reason cease directly or through or together with one
or more Subsidiaries (the capital stock of which shall be wholly owned by
DII or by or together with a wholly owned Subsidiary thereof) to own the
capital stock of Borrower.
"Closing Date" shall mean the Business Day on which the Loan Documents are
executed by Borrower, which shall be May 12, 1995, or such other date as
the parties agree. The closing shall take place at 10:00 A.M., New York
time, on the Closing Date at the offices of DII or at such other time and
place as the parties agree.
"Dollar," "US Dollar," "dollar," and "$" all shall each mean lawful
currency of the United States of America.
"Equivalent Amount" shall mean, as determined by Agent, (i) in relation to
any advance, loan, payment, or like event denominated in an Optional
Currency, the amount of such Optional Currency converted from the relevant
amount of Dollars at the mean of Agent's spot buying and selling rates
(based on the market rates then prevailing and available to Agent) for the
exchange of Dollars and such other currency at a time determined by Agent
on the second Business Day immediately preceding the drawing date or such
other event for which such calculation is made, or (ii) in relation to any
payment, calculation, or like event denominated in Dollars, the amount of
Dollars converted from the relevant amount of such Optional Currency at
Agent's spot selling rate (based on the market rates then prevailing and
available to Agent) for the exchange of such Optional Currency and Dollars
at a time determined by Agent on the second Business Day immediately
preceding the payment or such other event for which such calculation is
made.
"GAAP" shall mean generally accepted accounting principles
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as are in effect in the United States from time to time, subject to the
provisions of Section 1.02, and applied on a consistent basis both as to
classification of items and amounts.
"Guaranties" shall have the meaning ascribed to such term
by Subsection 3.01(f).
"Guarantors" shall mean each and every of the Persons listed on Schedule
1.01-B, jointly and severally, and "Guarantor" shall mean any one of them.
"Interest Period" shall mean the period of interest as determined in
accordance with Subsection 2.07.
"Interest Period Request" shall have the meaning ascribed to such term by
Subsection 2.07.
"Law" shall mean any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, opinion, interpretation, release,
ruling, order, injunction, writ, decree, or award of any Official Body;
the use of the term, "Lawful," herein shall embody the concept of "Law" as
defined herein.
"LIBO Rate Reserve Percentage" shall mean the maximum percentage (rounded
upward to the nearest 1/16th of 1 percent) as determined by Agent (which
determination shall be conclusive absent manifest error) which is in
effect during any relevant period: (i) as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) (the "Board")
for determining the reserve requirements (including supplemental, special,
marginal, and emergency reserve requirements and without benefit of or
credit for proration, exceptions, or offsets which may be available from
time to time to any Bank under Regulation D of the Board) with respect to
eurocurrency funding (currently referred to by the Board as "Eurocurrency
Liabilities" in Regulation D of the Board) of a member bank in such
System; and (ii) to be maintained by a Bank as required for reserve
liquidity, special deposit, or similar purposes by any other governmental
or monetary authority of any country, or any political subdivision thereof
(including the Bank of England or any other central bank), against (A) any
category of liabilities that includes deposits by reference to which LIBOR
for LIBOR Term Loans or Borrowing Tranches is to be determined, or (B) any
category of extension of credit or other assets that includes LIBOR Term
Loans or Borrowing Tranches.
"LIBOR" shall mean with respect to each LIBOR Term Loan or Borrowing
Tranche for any Interest Period, the interest rate per annum determined by
Agent by dividing (the resulting quotient rounded upward to the nearest
1/16th of 1 percent per annum) (i) the rate of interest per annum
determined by Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest
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error) to be the rate of interest per annum for deposits in the currency
concerned offered to Agent in the London interbank market at approximately
11:00 a.m. London time two (2) Business Days prior to the first day of
such Interest Period for delivery on the first day of such Interest Period
for a period, and in an amount, comparable to the Interest Period and
principal amount of the LIBOR Term Loan or portion of the Borrowing
Tranche which shall be made by Agent and outstanding during such Interest
Period ("LIBO Rate") by (ii) a number equal to 1.00 minus the LIBO Rate
Reserve Percentage. LIBOR may also be expressed by the following formula:
LIBOR = LIBO RATE
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1 - LIBO Rate Reserve Percentage
LIBOR shall be adjusted, with respect to any LIBOR Term Loan or Borrowing
Tranche outstanding, on the effective date of any change in the LIBO Rate
Reserve Percentage as of such effective date.
"LIBOR Term Loan" shall mean a Term Loan made by a Bank bearing interest
calculated with reference to LIBOR and one or more appropriate Applicable
Percentages.
"Loan Documents" shall mean this Agreement, the Notes, and any other
instruments, certificates, guaranties, or documents delivered or
contemplated to be delivered hereunder or thereunder or in connection
herewith or therewith, as the same may be supplemented or amended from
time to time in accordance herewith or therewith, and "Loan Document"
shall mean any of the Loan Documents.
"Notes" shall mean collectively and "Note" shall mean separately all of
the Term Notes (as defined at Subsection 2.04) of the Borrower evidencing
the Term Loans, together with all amendments, extensions, renewals,
replacements, refinancings or refunds thereof in whole or in part.
"Obligations" shall mean the obligation of Borrower to make due and
punctual payment of principal of and interest on the Term Loans, the
Facility Fees, and all other monetary obligations of Borrower to any of
the Banks or Agent under this Agreement, the Notes or any other present or
future document, instrument, or agreement relating thereto.
"Official Body" shall mean any national, federal, state, local, or other
government or political subdivision or any agency, authority, bureau,
central bank, commission, department, or instrumentality of any of the
foregoing, or any court, tribunal, grand jury, or arbitrator, in each case
whether foreign or domestic.
"Optional Currency" shall mean Pounds Sterling or Swiss
Francs.
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"Person" shall mean any individual, corporation, partnership, association,
limited liability company, joint-stock company, trust, unincorporated
organization, joint venture, Official Body, or any other entity.
"Pounds Sterling," "Pounds," and "(pound)" shall mean the lawful currency
of the United Kingdom.
"Principal Office" shall mean the main banking office of the Agent in New
York, New York.
"Ratable Share" shall mean the proportion that a Bank's Term Loan
outstanding bears to the aggregate Term Loans outstanding of all of the
Banks; provided that prior to and on the Borrowing Date, "Ratable Share"
shall mean the proportion that a Bank's Term Loan Commitment bears to the
Term Loan Commitments of all Banks.
"Required Banks" shall mean (i) if there are no Term Loans outstanding,
Banks whose Term Loan Commitments aggregate at least 60% of the Term Loan
Commitments of all Banks, or (ii) if there are Term Loans outstanding,
Banks whose Term Loans outstanding aggregate at least 60% of the total
principal amount of the Term Loans outstanding hereunder.
"Subsidiary" shall mean, with respect to any Person (referred to in this
sentence as "such Person"), any other Person of which more than 50% of the
securities or other ownership interests having ordinary voting power is,
at the time of which any determination is being made, owned or controlled
by such Person or one or more Subsidiaries of such Person.
"Swiss Francs" and "SFR" shall mean the lawful currency of
Switzerland.
"Termination Date" shall mean December 23, 1999.
"Term Loan Commitment" shall mean, as to any Bank at any time, the Dollar
amount initially set forth opposite its name on Schedule 1.01 A in the
column labeled "Amount of Commitment for Term Loans," and thereafter on
Schedule I to the most recent Assignment and Acceptance Agreement; and,
"Term Loan Commitments" shall mean the aggregate Term Loan Commitments of
all of the Banks.
"Term Loans" shall mean collectively and "Term Loan" shall mean separately
all Term Loans or any Term Loan made by the Banks or one of the Banks to
the Borrower pursuant to Section 2. As used herein, "LIBOR Term Loan" and
"Term Loan" are synonymous.
"Term Loan Request" shall have the meaning ascribed to such term by
Subsection 3.02(b).
1.02 Miscellaneous Definitions, Usage, and Meanings.
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Unless the context of this Agreement otherwise clearly requires:
references to the plural include the singular and vice versa, "or" has the
inclusive meaning represented by the phrase "and/or," and "including" is not a
term of limitation and shall mean "including without limitation." As used in
this Agreement, the words "hereof," "herein," "hereunder," and terms of similar
import refer to this Agreement as a whole and not to any particular provision of
this Agreement. References to "determination" of or by the Agent or a Bank shall
be deemed to include good faith estimates by the Agent or a Bank (in the case of
quantitative determinations) and good faith beliefs by the Agent or a Bank (in
the case of qualitative determinations) and such determination shall be
conclusive absent manifest error. The section and other headings contained in
this Agreement and the Table of Contents at the beginning hereof are for
reference purposes only and shall not control or affect the construction or
interpretation of this Agreement. Section, subsection, clause, schedule, and
exhibit references are to this Agreement unless otherwise specified. The
masculine and neuter genders used herein shall include the masculine, feminine,
and neuter genders as well. Reference to any agreement, document, or instrument
(including this Agreement and any other Loan Document together with the
schedules and exhibits hereto or thereto, but excluding the Syndicated Agreement
and documents, instruments, and agreements relating thereto), or to any Term
Loan or Borrowing Tranche means such agreement, document, instrument, or
facility as amended, modified, replaced, renewed, substituted for, superseded,
restated, or the like. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such parties unless the context expressly states otherwise. Reference
to a Person in a particular capacity excludes such Person in any other capacity.
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement, or pursuant to other
agreements incorporated herein, shall be made and prepared in accordance with
generally accepted accounting principles as are in effect in the United States
from time to time (including principles of consolidation where appropriate), and
applied on a consistent basis (except for changes in application in which DII's
independent certified public accountants concur and as to which change(s) notice
thereof is promptly provided to Agent and the Banks) both as to classification
of items and amount ("GAAP"), and all accounting or financial terms shall have
the meanings ascribed to such terms by GAAP.
SECTION 2
TERM LOANS
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2.01 Term Loan Commitments.
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Subject to the terms and conditions hereof, and relying upon the
representations and warranties herein set forth or otherwise incorporated herein
by reference, each Bank severally (but not jointly) agrees to make a term loan
(each, a "Term Loan") in one or more Optional Currencies to Borrower on or after
the Closing Date (but in no event after the Borrowing Date) in such principal
amount as Borrower shall request up to but not exceeding such Bank's Term Loan
Commitment.
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2.02 Nature of Banks' Obligations with Respect to Term Loans.
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The obligation of each Bank to make a Term Loan to Borrower shall be in
the proportion that such Bank's Term Loan Commitment bears to the aggregate Term
Loan Commitments of all Banks to Borrower, but subject to Subsection 2.13(b),
each Bank's Term Loan to Borrower shall not exceed its Term Loan Commitment;
adjustments with respect thereto shall be made in accordance with the terms of
Subsection 2.13(b) hereof. The failure of any Bank to make a Term Loan shall not
relieve any other Bank of its obligation to make a Term Loan nor shall it impose
any additional liability on any other Bank hereunder. The Banks shall have no
obligation to make Term Loans hereunder after the Borrowing Date. The Term Loan
Commitments are not revolving credit commitments and Borrower shall have no
right to borrow, repay, and reborrow thereunder.
2.03 Term Loan Facility Fee.
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Borrower agrees to pay in immediately available Dollars to Agent for the
account of each Bank, as consideration for such Bank's Term Loan Commitment, a
nonrefundable facility fee equal to .06% of such Bank's Term Loan Commitment,
payable on the Closing Date (the "Facility Fee").
2.04 Term Loan Notes; Principal Repayment Date.
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The Obligation of Borrower to repay the unpaid principal amount of the
Term Loan made by a Bank, together with interest thereon, shall be evidenced by
a promissory note (or two promissory notes, denominated in the Optional Currency
in which one or the other portion of the Term Loan was made by such Bank) dated
as of the Borrowing Date and payable to the order of such Bank (each, a "Term
Note" and, collectively, the "Term Notes"). The principal amount of the Term
Notes shall be due and payable on the Termination Date in the Optional Currency
in which they are denominated.
2.05 Use of Proceeds.
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The proceeds of the Term Loans shall be used solely to finance the cost to
Borrower of the Acquisition; none of the Term Loans shall be used for currency
speculation or similar purposes.
2.06 Interest Rate, Borrowing Tranches, Currency.
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The Borrower shall pay interest in respect of the out-standing unpaid
principal amount of the Term Loans based upon LIBOR (as more fully set forth
herein), it being understood that, subject to the provisions of this Agreement,
the Borrower may from time to time select different Interest Periods to apply
simultaneously to those portions of the Term Loans comprising different
Borrowing Tranches provided that there shall not be at any one time outstanding
more than eight (8) Borrowing Tranches in the aggregate among all the Term
Loans. If at any time the rate applicable to any Term Loan (or any portion
thereof) made by any Bank exceeds such Bank's highest Lawful rate, the rate of
interest on such Bank's Term Loan (or any portion thereof) shall be limited to
such Bank's highest Lawful rate .
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Interest on the principal amount of a Term Loan which was made in an Optional
Currency shall be paid in such Optional Currency.
(a) Term Loan Interest Rate; Calculations.
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Subject to Subsection 2.06(d) and Subsection 2.14, each Borrowing
Tranche shall accrue interest at a rate per annum equal to LIBOR for the
Interest Period in effect for such Borrowing Tranche plus the Applicable
Percentage then in effect and determined as set forth at Subsection
2.06(c) below. Interest on LIBOR Borrowing Tranches shall be calculated on
the basis of a year of 360 days for the actual number of days elapsed;
provided that, for LIBOR Borrowing Tranches in an Optional Currency for
which a 365- day basis is the only market practice available to Agent for
such Borrowing Tranche, interest shall be calculated on the basis of a
year of 365 or 366 days, as the case may be, for the actual days elapsed.
(b) Rate Quotations.
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Borrower may call Agent on or before the date on which an Interest
Period Request is to be delivered to receive an indication of the rates
then in effect, but it is acknowledged by Borrower that such indication
shall not be binding on Agent or the Banks nor affect the rate of interest
which thereafter is actually in effect.
(c) Applicable Percentage.
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The Applicable Percentage shall change in accordance with Subsection
2.06(a) above based on the Consolidated Interest Coverage Ratio at the end
of each fiscal quarter of DII for the preceding four fiscal quarters then
ended, effective as to each Borrowing Tranche upon the expiration of the
Interest Period with respect thereto expiring at least five (5) Business
Days after delivery by DII to the Agent of (x) financial statements
pursuant to Section 5.05 of the Syndicated Agreement as at the end of such
quarter, and (y) a certificate of a Financial Officer of DII in form
reasonably satisfactory to the Agent setting forth the calculation in
reasonable detail of the Consolidated Interest Coverage Ratio as at the
end of such quarter and the Applicable Percentage corresponding thereto in
accordance with the table set forth in the definition of such term at
Subsection 1.01(b) hereof.
(d) Post-Maturity Rate.
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(i) All amounts not paid when due shall bear interest (computed and
adjusted in the same manner and with the same effect as interest on
pre-maturity principal is calculated hereunder) payable on demand
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at a rate per annum equal to two percent (2%) above the interest rate
otherwise applicable to such amount prior to maturity (such interest
rate to include the Applicable Percentage then in effect) during the
balance of any Interest Period applicable thereto, and thereafter at
a rate per annum equal to two percent (2%) in excess of the sum of
the then Applicable Percentage plus LIBOR for a one month Interest
Period recalculated for successive one-month Interest Periods until
paid. Interest shall be payable in accordance with the terms hereof
regardless whether one or more judgments or defaults have occurred.
In no event shall any interest rate or any other fees or charges in
the nature of interest at any time exceed the maximum rate permitted
by applicable Law; in the event that such limitation is exceeded,
such amount shall be credited by the Bank collecting such excessive
interest as a payment of principal unless Borrower otherwise directs.
(ii) Borrower acknowledges that such post-maturity rate reflects,
among other things, that such amounts have become a substantially
greater risk given their default status and that the Banks are
entitled to additional compensation for such risk; and, all such
interest shall be payable by Borrower upon demand by Agent.
2.07 Interest Periods.
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Each Borrowing Tranche shall be subject to an Interest Period as selected
by Borrower. Borrower shall notify Agent of its selection of the Interest Period
to be applicable to a Borrowing Tranche at least four (4) Business Days prior to
the expiration of the Interest Period then applicable to any Borrowing Tranche
by delivering to Agent a request for an Interest Period (an "Interest Period
Request"). The Interest Period Request shall specify the Borrowing Tranche to
which it is applicable, the last date of the then current Interest Period
applicable to such Borrowing Tranche, and the proposed interest period (the
"Interest Period") for which LIBOR shall be redetermined, such Interest Period
to be one, two, three, six, or twelve months (to the extent available),
provided, that:
(a) any Interest Period which would otherwise end on a date which is not a
Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(b) any Interest Period which begins on or about the last day of a
calendar month for which there is no numerically corresponding day in the
subsequent calendar month during which such Interest Period is to end
shall end on the last Business Day of such subsequent month;
(c) each Borrowing Tranche shall be in integral multiples
of SFR540,000 or (pound)240,000, as applicable;
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(d) Borrower shall not select an Interest Period for any
Borrowing Tranche that would end after the Termination
Date; and
(e) the first day of a new Interest Period for any Borrowing Tranche shall
be the last day of the preceding Interest Period for such Borrowing
Tranche, without duplication in payment of interest for such day.
2.08 Selection of Interest Periods.
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If Borrower fails to timely select a new Interest Period to apply to any
Borrowing Tranche at the expiration of the existing Interest Period therefor in
accordance with the provisions of Section 2.07 or if Borrower has not timely
provided a prepayment notice to Agent with respect thereto, Borrower shall be
deemed to have selected an Interest Period of one month, subject however to
Subsection 2.07(d).
2.09 Payments.
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All payments and prepayments to be made in respect of principal, interest,
fees, or other amounts due from the Borrower hereunder shall be payable prior to
12:00 noon (New York time) on the date when due without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived by
Borrower, and without setoff, counterclaim or other deduction of any nature, and
an action therefor shall immediately accrue; payment after such time shall cause
interest at the applicable rate to accrue thereon as if such payment had not
been made on such date. All payments of principal and interest shall be made to
the Agent at its Principal Office for the ratable accounts of the Banks with
respect to the Term Loans in the Optional Currency in which such Term Loan or
portion thereof was made and in immediately available funds in such Optional
Currency, and the Agent shall promptly distribute such amounts to the Banks in
immediately available funds in such Optional Currency. The Agent's and each
Bank's statement of account, ledger, or other relevant books and records shall,
in the absence of manifest error, be conclusive as the statement of the Optional
Currencies in which made and the amount of principal of and interest on the Term
Loans and other amounts owing under this Agreement and shall be deemed an
"account stated."
2.10 Pro Rata Treatment of Banks.
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The borrowing of the Term Loans, each Borrowing Tranche, and each payment
or prepayment by Borrower with respect to principal or interest due from
Borrower hereunder to the Banks with respect to the Term Loans, shall (except as
provided in Subsection 2.12(b), Subsection 2.14(b) or Subsection 2.15) be made
in proportion to the Ratable Share of each Bank.
2.11 Interest Payment Dates.
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Interest on each Borrowing Tranche of the Term Loans shall be due and
payable on the last day of each Interest Period therefor, except that if
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any Interest Period for a Borrowing Tranche is longer than three months,
interest on such Borrowing Tranche shall also be due as if the Borrowing Tranche
was subject to successive three month Interest Periods. Interest on payments or
prepayments of principal together with any other amount due thereon in
accordance with the terms hereof shall be due also on the date such payment or
prepayment is due. Interest on the principal amount of each Term Loan, or
portion thereof, or other monetary Obligation shall be due and payable on demand
after such principal amount or other monetary Obligation becomes due and payable
(whether on the stated maturity date, upon acceleration, or otherwise).
2.12 Voluntary Prepayments.
----------------------
(a) Borrower shall have the right at its option from time to time to
prepay that portion of the Term Loans described below without premium or
penalty (except as provided in Clause (b) directly below or in Subsection
2.15) solely as set forth below:
(i) on the last day of the applicable Interest Period with respect to
a Borrowing Tranche, provided that any prepayment of a Borrowing
Tranche or portion thereof shall be in an integral multiple of
SFR540,000 or (pound)240,000, as applicable,
(ii) on the date specified in a notice by any Bank pursuant to
Subsection 2.14 with respect to any Term Loan or portion thereof.
Whenever Borrower desires to prepay any Term Loan or portion thereof,
it shall provide a prepayment notice to the Agent at least four (4)
Business Days prior to the date of such prepayment setting forth the
following information:
(x) the date, which shall be a Business Day, on which
the proposed prepayment is to be made;
(y) a statement indicating the Term Loan, portion of a Term Loan, or
Borrowing Tranche (as the case may be) being repaid, the Interest
Period(s) applicable thereto, and the Optional Currency(ies) in which
it is denominated; and
(z) the total principal amount of such prepayment, which shall not be
less than the amount of such Borrowing Tranche or the integral
multiple of one of the amounts set forth directly above in clause (i)
of any one Borrowing Tranche or the amount required to be prepaid
pursuant to Clause (ii) directly above.
All prepayment notices shall be irrevocable. The principal amount of
the Term Loans for which a prepayment notice is given, together with
interest on such principal amount, shall be due and payable in the
Optional Currency or Optional Currencies borrowed with respect thereto on
the date specified in such prepayment notice as the date on
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which the proposed prepayment is to be made. If Borrower prepays all or a
portion of a Term Loan but fails to specify the applicable Borrowing
Tranche(s) which the Borrower is prepaying, Agent may apply the prepayment
in any manner it chooses notwithstanding other costs that may result to
Borrower. Any prepayment hereunder shall be subject to the Borrower's
Obligation to indemnify the Banks under Subsection 2.15.
(b) In the event any Bank (i) gives notice under Subsection 2.14(b) or
Subsection 2.15(a), (ii) does not approve any action as to which consent
of the Required Banks is requested by the Borrower and obtained hereunder,
or (iii) becomes subject to the control of an Official Body (other than
normal and customary supervision), then the Borrower shall have the right
at its option, with the consent of Agent, which shall not be unreasonably
withheld, to prepay the Term Loans of such Bank in whole together with all
interest accrued thereon within ninety (90) days after (w) receipt of such
Bank's notice under Subsection 2.14(b) or 2.15(a), (x) the date of
obtaining the consent which such Bank has not approved, or (y) the date
such Bank became subject to the control of an Official Body, as
applicable; provided that the Borrower shall also pay to such Bank at the
time of such prepayment any amounts required under Subsection 2.15 and any
accrued interest due on such amount and any related fees; provided,
however, that the Term Loan Commitment and any Term Loan of such Bank
shall be provided by one or more of the remaining Banks or a replacement
bank acceptable to the Agent; provided, further, that the remaining Banks
shall have no obligation hereunder to increase their Term Loan
Commitments. Notwithstanding the foregoing, the Agent may only be replaced
subject to the requirements of Subsection 6.14.
2.13 Mandatory Payment and Prepayment.
---------------------------------
(a) Maturity.
---------
All principal, accrued and unpaid interest, and other amounts
outstanding under this Agreement or any Note shall, if not sooner paid, be
due and payable on the Termination Date.
(b) Currency Fluctuations, Repayment.
---------------------------------
If on or about the last day of an Interest Period of any Borrowing
Tranche (as determined by Agent four (4) Business Days prior thereto), the
aggregate Equivalent Amount in Dollars of all Term Loans outstanding is
equal to or greater than 110% of the aggregate Term Loan Commitments of
all Banks, then Borrower shall pay or prepay at the end of such Interest
Period an aggregate principal amount of
117
that Borrowing Tranche the Interest Period of which is then expiring, or
make such other accommodation with the Banks as the Required Banks shall
approve, such that the aggregate Equivalent Amount in Dollars of all Term
Loans outstanding does not exceed the aggregate Term Loan Commitments of
all Banks.
(c) Currency Repayments.
--------------------
Notwithstanding anything contained herein to the contrary, the entire
amount of principal of and interest on any portion of each Term Loan of
each Bank shall be repaid in the same Optional Currency in which such
portion of the Term Loan was borrowed; provided, however, that if it is
impossible or illegal for Borrower to effect payment of a portion of a
Term Loan of any Bank in the Optional Currency in which such portion of
the Term Loan was borrowed, or if Borrower defaults in its obligations to
do so, such Bank may at its option permit such payment to be made (i) at
and to a different location of such Bank, or (ii) in the Equivalent Amount
of Dollars or (iii) in an equivalent amount (such term to be calculated
for such other currency in a similar manner as set forth for the term,
Equivalent Amount, as such term is applied to the conversion of an
Optional Currency to Dollars) of such other currency (freely convertible
into Dollars) as such Bank may designate, in any of which events, Borrower
shall make such payment and Borrower agrees to hold such Bank harmless
from and against any loss incurred by such Bank arising from the cost to
such Bank of any premium, any costs of exchange, the cost of hedging and
covering the Optional Currency in which such portion of the Term Loan was
originally made, and from any change in the value of Dollars, or such
other currency, in relation to the Optional Currency that was due and
owing, such loss to be calculated for the period commencing with the
Closing Date for such portion of a Term Loan and continuing through the
date of payment thereof. Without prejudice to the survival of any other
agreement of Borrower hereunder, Borrower's obligations under this Clause
(c) shall survive termination of this Agreement.
2.14 LIBOR Rate Unascertainable.
---------------------------
(a) If on any date on which LIBOR would otherwise be determined, Agent
shall have determined (which determination shall be conclusive absent
manifest error) that:
(i) adequate and reasonable means do not exist for
ascertaining LIBOR, or
(ii) a contingency has occurred which materially and adversely
affects the London interbank market relating to LIBOR or the
availability of an Optional Currency;
118
or
(b) if at any time any Bank shall have determined (which determination
shall be conclusive absent manifest error) that:
(i) the making, maintenance, or funding of any Term Loan or portion
thereof to which LIBOR applies or shall apply has been made
impracticable or unlawful by compliance by Bank in good faith with
any Law, or any change therein, or any change in the interpretation
or administration thereof by any Official Body or with any request or
directive (whether or not having the force of Law) of any such
Official Body, or
(ii) such LIBOR will not adequately and fairly reflect the cost to
such Bank of the establishment or maintenance of a Term Loan or
portion thereof, or
(iii) after making all reasonable efforts, that deposits of the
relevant amount in the requested Optional Currency for the relevant
Interest Period for a Term Loan or a portion thereof to which LIBOR
applies, are not available to such Bank in the London interbank
market at the effective cost of funding a Term Loan or a portion
thereof,
then, in the case of any event specified in Clause (a) directly above,
Agent shall so notify the Banks and Borrower thereof and, in the case of
an event specified in Clause (b) directly above, such Bank shall so notify
Agent and endorse a certificate to such notice as to the specific
circumstances of such notice and Agent shall promptly send copies of such
notice and certificate to the other Banks and Borrower. Upon such date as
shall be specified in any such notice (which shall not be earlier than the
date such notice is given), the obligation of (A) the Banks in the case of
such notice given by Agent or (B) such Bank in the case of such notice
given by such Bank to allow Borrower to obtain the relevant Term Loan or
portion thereof shall be suspended until Agent or such Bank shall have
determined (which determination shall be conclusive absent manifest error)
that the circumstances giving rise to such previous determination no
longer exist. If at any time any Bank notifies the Agent of a
determination under Clause (b) directly above, Borrower shall, subject to
Borrower's indemnification Obligations under Subsection 2.15(b), on the
date specified in such notice either convert such relevant Term Loan or
portion thereof to an interest rate mutually acceptable to Borrower and
such Bank or prepay such Term Loan or portion thereof in accordance with
the terms hereof. Absent due notice from Borrower of such agreed upon
conversion, such Term Loan or portion thereof shall automatically be due
and payable subject to the indemnification provisions of Subsection
2.15(b).
2.15 Additional Compensation in Certain Circumstances.
119
-------------------------------------------------
(a) Increased Costs or Reduced Return Resulting From
Taxes, Reserves, Capital Adequacy Requirements,
Expenses, Etc.
-----------------------------------------------------
If any Law, guideline, or interpretation or any change in any Law or
guideline, interpretation, or application thereof by any Official Body
charged with the interpretation, administration or application thereof, or
if compliance with any request or directive (whether or not having the
force of Law) of any Official Body:
(i) subjects any Bank to any tax or changes the basis of taxation
with respect to this Agreement, the Notes, the Term Loans, or
payments by Borrower of principal, interest, fees, or other amounts
due from Borrower hereunder or under any Note (except for taxes on
the overall net income of such Bank),
(ii) imposes, modifies, or deems applicable any reserve, special
deposit, assessment, or similar requirement against credits or
commitments to extend credit extended by, or assets (funded or
contingent) of, deposits with or for the account of, or other
acquisitions of funds by, any Bank, or
(iii) imposes, modifies, or deems applicable to any Bank (or any
corporation or company controlling such Bank) any capital adequacy or
similar requirement (A) against assets (funded or contingent) of, or
other credits or commitments to extend credit extended by, any Bank,
or (B) otherwise applicable to the obligations of any Bank under this
Agreement, and the result of any of the foregoing is to increase the
cost to, reduce the income receivable by, or impose any expense
(including loss of margin) upon any Bank (or any corporation or
company controlling any such Bank) with respect to this Agreement,
any Note, or the making, maintenance, or funding of any part of the
Term Loans (or, in the case of any capital adequacy or similar
requirement, to have the effect of reducing the rate of return on the
capital of such Bank (or any corporation or company controlling such
Bank), taking into consideration such Bank's (or its holding
company's) customary policies with respect to capital adequacy) by an
amount which such Bank in its sole discretion deems to be material,
such Bank shall from time to time notify Borrower of the amount
determined in good faith (using any averaging and attribution methods
employed in good faith) by such Bank (which determination shall be
conclusive absent manifest error) to be necessary to compensate such
Bank for such increase in cost, reduction of income, or additional
expense. Such notice shall set forth in reasonable detail the basis
for such determination.
120
Such amount shall be due and payable by Borrower to such Bank ten
(10) Business Days after such notice is given.
(b) Indemnity; Funding Breakage.
----------------------------
In addition to the compensation required by Clause (a) of this
Subsection 2.15, Borrower shall indemnify each Bank against all
liabilities, losses, and expenses (including loss of margin, any loss or
expense incurred in liquidating or employing deposits from third parties
or incurred in terminating or unwinding any contracts, and any loss or
expense incurred in connection with Optional Currencies or other funds
acquired by a Bank to fund or maintain any part of the Term Loans) which
such Bank sustains or incurs as a consequence of any:
(i) payment or prepayment of any Term Loan or portion thereof or the
conversion or renewal of any interest rate applicable to any Term
Loan or portion thereof, to which LIBOR applies, on a day other than
the last day of the corresponding Interest Period (whether or not
such payment or prepayment is mandatory, voluntary, or automatic and
whether or not such payment or prepayment is then due),
(ii) attempt by Borrower to revoke (expressly, by later inconsistent
notices, or otherwise) in whole or part any notice relating to
Interest Periods, loans of any nature, payments, or prepayments, or
(iii) default by Borrower in the performance or observance of any
covenant or condition contained in or incorporated into this
Agreement or any other Loan Document, including without limitation
any failure of Borrower to pay when due (by acceleration or
otherwise) any principal, interest, fee, or any other amount due
hereunder.
If any Bank sustains or incurs any such loss or expense, it shall
from time to time notify Borrower of the amount determined in good faith
by such Bank (which determination shall be conclusive absent manifest
error and may include such assumptions, allocations of costs and expenses,
and averaging or attribution methods as such Bank shall deem reasonable)
to be necessary to indemnify such Bank for such loss or expense. Such
notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by Borrower to such
Bank ten (10) Business Days after such notice is given.
2.16 Taxes.
------
(a) No Deductions.
--------------
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All payments made by Borrower hereunder and under each Note shall be
made free and clear of and without deduction for any present or future
taxes, levies, imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on the net
income of any Bank and all income and franchise taxes applicable to any
Bank of the United States (all such non- excluded taxes, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter
referred to as "Taxes"). If Borrower shall be required by Law to deduct
any Taxes from or in respect of any sum payable hereunder or under any
Note, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Subsection) each Bank receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) Borrower shall make such deductions and (iii) Borrower shall
timely pay the full amount deducted to the relevant tax authority or other
authority in accordance with applicable Law.
(b) Stamp Taxes.
------------
In addition, Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, or
similar levies which arise from any payment made hereunder or from the
execution, delivery, or registration of, or otherwise with respect to,
this Agreement or any Note (herein-after referred to as "Other Taxes").
(c) Indemnification for Taxes Paid by a Bank.
-----------------------------------------
Borrower shall indemnify each Bank for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Subsection) paid
by any Bank and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date a Bank makes
written demand therefor.
(d) Certificate.
------------
Within 30 days after the date of any payment of any Taxes by
Borrower, Borrower shall furnish to each Bank, at its address referred to
herein, the original or a certified copy of a receipt evidencing payment
thereof. If no Taxes are payable in respect of any payment by Borrower,
such Borrower shall, if so requested by a Bank, provide a certificate of
an officer of Borrower to that effect.
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(e) Survival.
---------
Without prejudice to the survival of any other agreement of Borrower
hereunder, the agreements and obligations of Borrower contained in Clauses
(a) through (d) directly above shall survive the payment in full of
principal and interest hereunder and under any instrument delivered
hereunder.
2.17 Judgment Currency.
------------------
(a) If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due hereunder or under a Note in any currency (the "Original
Currency") into another currency (the "Other Currency"), the parties hereby
agree, to the fullest extent permitted by Law, that the rate of exchange used
shall be that at which in accordance with normal banking procedures each Bank
could purchase the Original Currency with the Other Currency after any premium
and costs of exchange on the Business Day preceding that on which final judgment
is given.
(b) The obligation of Borrower in respect of any sum due from Borrower to
any Bank hereunder shall, notwithstanding any judgment in an Other Currency,
whether pursuant to a judgment or otherwise, be discharged only to the extent
that, on the Business Day following receipt by any Bank of any sum adjudged to
be so due in such Other Currency, such Bank may in accordance with normal
banking procedures purchase the Original Currency with such Other Currency. If
the amount of the Original Currency so purchased is less than the sum originally
due to such Bank in the Original Currency, Borrower agrees, as a separate
obligation and notwithstanding any such judgment or payment, to indemnify such
Bank against such loss.
2.18 London Interbank Market, Presumption.
-------------------------------------
For all purposes of this Agreement and each Note with respect to any
aspects of LIBOR or any Term Loan (or portion thereof) or any Optional Currency,
each Bank and Agent shall be presumed to have obtained rates, funding,
currencies, deposits, and the like in the London interbank market regardless
whether it did so or not; and, each Bank's and Agent's determination of amounts
payable under, and actions required or authorized by, Subsections 2.14 and 2.15
shall be calculated, at each Bank's and Agent's option, as though each Bank and
Agent funded its Term Loans and each Borrowing Tranche through the purchase of
deposits of the types and maturities corresponding to the deposits used as a
reference in accordance with the terms hereof in determining LIBOR applicable to
such Term Loans or portion(s) thereof, whether in fact that is the case or not.
SECTION 3
CONDITIONS OF LENDING
- ---------------------
3.01 Conditions Precedent to Closing.
--------------------------------
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The obligation of each Bank to enter into this Agreement is conditioned
upon satisfaction of those matters set forth below and upon Borrower delivering
to Agent the following documents, in form and substance satisfactory to the
Banks, each dated on or before the date hereof as follows:
(a) A certificate of good standing and the Certificate of Incorporation
and the Bylaws (or similar organizational documents) of Borrower certified
respectively by the appropriate Official Body or official of the Borrower
as true and complete on or just prior to the Closing Date;
(b) Certified copies of the resolutions or actions of the Board of
Directors or similar governing body of Borrower authorizing the execution,
delivery, and performance of this Agreement, the Notes, and the other Loan
Documents and the borrowings contemplated herein, and the assumption of
all other undertakings provided for herein and therein;
(c) Incumbency certificates signed by the Secretary or Assistant Secretary
or similar official of Borrower for each of the person(s) executing on
behalf of Borrower this Agreement, the Notes, and any other Loan Document;
(d) Opinions from Cayman Island and English legal counsel
for Borrower in form satisfactory to the Banks;
(e) Such updated Schedules to the Syndicated Agreement as
are necessary to reflect any changes since the date of such
agreement;
(f) The guaranty by each of the Guarantors of the payment
and performance by Borrower of its Obligations arising
hereunder (the "Guaranties"), together with documents of
each such Guarantor comparable to those set forth in
Clauses (a) through (c) above, together with an opinion of
J. Patrick Clark, Esquire, counsel to Guarantors;
(g) Borrower shall pay the Facility Fees of the Banks as set forth herein
and all of the fees, costs, and expenses of Agent (including reasonable
attorneys' fees) arising out of this transaction.
3.02 Conditions Precedent to Banks Making Term Loans.
------------------------------------------------
The obligation of the Banks to make their respective Term Loans to
Borrower hereunder shall expire immediately after the Borrowing Date and is
conditioned upon satisfaction of those matters set forth below and upon Borrower
delivering to Agent the following documents, in form and substance satisfactory
to the Banks:
(a) Properly executed Notes, dated as of the Borrowing Date and delivered
to Agent with the Term Loan Request (defined below);
(b) Borrower shall provide to Agent a request for Term
124
Loans (the "Term Loan Request") executed by Borrower, in form satisfactory
to Agent and the Banks and accompanied by the fully executed Notes,
setting forth (i) the amount denominated in the Optional Currency of each
Borrowing Tranche comprising the Term Loans, and (ii)the initial Interest
Period applicable to each such Borrowing Tranche (all of which Interest
Periods shall commence on the same date); Borrower shall provide the Term
Loan Request and accompanying Notes to Agent by 10:00 a.m. New York time
four (4) Business Days prior to the Borrowing Date, and in the event that
Borrower desires to borrow the Term Loans on or within three (3) Business
Days after the Closing Date, Borrower shall include in such Term Loan
Request Borrower's irrevocable agreement, substantially in the form of
Subsection 2.15(b) hereof, pursuant to which Borrower agrees to indemnify
each Bank for any break funding and related costs incurred by any such
Bank in obtaining Optional Currencies to fund a Term Loan (or portion
thereof) prior to the execution hereof by Borrower.
(c) The Optional Currencies in the amounts requested in the Term Loan
Request shall be freely available to the Banks on the proposed Borrowing
Date; and, LIBOR with respect thereto shall be readily calculable and
maintainable therefor;
(d) All representations and warranties made by Borrower herein and made by
Borrower or any Guarantor in the Syndicated Agreement shall be true and
correct on the Borrowing Date as though made as of such date (except to
the extent that any such representation or warranty may relate to an
earlier date), and there shall not be any Event of Default hereunder nor
shall any event have occurred and be continuing that with notice or lapse
of time, or both, would constitute an Event of Default;
(e) All documents and instruments relating to the making of the Term
Loans, and all proceedings taken by or on behalf of Borrower or any
Guarantor on or prior to the Borrowing Date in connection with the
performance of this Agreement shall be satisfactory to the Banks, and each
Bank shall have received copies of all such documents or other evidence as
it may reasonably request in order to establish the fulfillment of all
conditions precedent and the truth and correctness of all representations
and warranties set forth herein or incorporated herein.
(f) There shall have occurred no material adverse change in the business,
assets, condition (financial or otherwise), or results of operations of
Borrower or Guarantors taken as a whole since the Closing Date, except as
previously disclosed in writing to the Banks prior to the Borrowing Date.
3.03 Interest Period Requests.
-------------------------
125
The Term Loan Request and each Interest Period Request given hereunder
shall be deemed to be a representation and warranty by Borrower: (i) that at the
date of such Interest Period Request there exists no condition, event, or act
which constitutes an Event of Default, and no condition, event or act which,
with notice or lapse of time, or both, would constitute such an Event of
Default, and (ii) that all representations and warranties of Borrower and each
Guarantor set forth herein or in any other Loan Document or in the Syndicated
Agreement are true and correct at the date of such Term Loan Request or Interest
Period Request as if made on such date (except to the extent any representation
or warranty may expressly relate to an earlier date and except to the extent
that any Schedule submitted by Borrower or any Guarantor pursuant to any
Guaranty or Subsection 3.01(e) hereof on or before the date hereof may modify
any such representation or warranty).
SECTION 4
REPRESENTATIONS, WARRANTIES, COVENANTS; INCORPORATION OF TERMS
- --------------------------------------------------------------
In order to induce Agent and each Bank to enter into this Agreement and so
long as this Agreement is in effect or any portion of any Term Loan is
outstanding, Borrower hereby agrees (and shall cause each Guarantor to similarly
agree) as follows:
4.01 Incorporation.
--------------
The Syndicated Agreement is hereby incorporated herein by reference and
made a part hereof (other than with respect to the obligations of the banks
under such agreement). As of the Closing Date, Borrower hereby makes to the
Agent and the Banks and restates directly to the Agent and the Banks all of the
representations and warranties made by Borrower (except to the extent that any
representation or warranty may expressly relate to an earlier date, and except
to the extent that any Schedule submitted by or on behalf of Borrower pursuant
Subsection 3.01(e) hereof on or before the date hereof may modify any such
representation or warranty), and Borrower hereby promises and covenants and
restates to Agent and the Banks all of the affirmative and negative covenants
applicable to Borrower, set forth in the Syndicated Agreement all as if such
representations, warranties, and covenants were fully set forth herein and made
directly by Borrower to Agent and the Banks, mutatis mutandis.
4.02 Representations, Compliance.
----------------------------
Accordingly, Borrower hereby represents and warrants to Agent and the
Banks that all representations and warranties set forth in the Syndicated
Agreement remain true and correct as of the Closing Date (except to the extent
that any such representation or warranty may expressly relate to an earlier date
and except to the extent that any Schedule submitted by or on behalf of Borrower
pursuant to Subsection 3.01(e) hereof on or before the date hereof may modify
any such representation or warranty), and Borrower hereby agrees with Agent and
the Banks to remain in compliance with all affirmative and negative covenants
set forth in the Syndicated Agreement applicable to Borrower on or after the
Closing Date regardless whether or
126
not the Syndicated Agreement remains in effect, the commitments thereunder
expire or terminate, or any indebtedness or obligations or liabilities under the
Syndicated Agreement are paid in full.
4.03 Amendments.
-----------
No amendment or modification to or any waiver of any provision of the
Syndicated Agreement by any of the parties thereto shall amend or modify or
waive for the purposes hereof any of the provisions of the Syndicated Agreement
which have been incorporated herein unless Agent and the Banks shall have
provided their written consent thereto (which consent shall not be unreasonably
withheld); and, the occurrence of any breach, default, or Event of Default under
the Syndicated Agreement at any time shall be a default, breach, and Event of
Default under this Agreement and under each and every document, instrument, and
agreement between any Bank or Agent and Borrower or given by Borrower to any
Bank or Agent relating to any of the Obligations of Borrower arising under this
Agreement, notwithstanding any term or provision hereof to the contrary, or any
term or provision of any document, instrument, or agreement between Borrower,
any Guarantor, and Agent or any Bank to the contrary.
4.04 Party to Syndicated Agreement.
------------------------------
Borrower shall become on or before the Closing Date a Guarantor under and
a party to the Syndicated Agreement.
4.05 Notices.
--------
Borrower shall provide prompt written notice to Agent and each of the
Banks in the event of:
(a) any amendment, modification, or the like to or any
waiver of any provision of the Syndicated Agreement; or
(b) any event or omission that could reasonably be expected to or does
result in an Event of Default hereunder or under the Syndicated
Agreement.
4.06 The Acquisition.
----------------
Borrower hereby covenants and agrees with Agent and the Banks that as of
the close of business on the Borrowing Date: the Acquisition, shall have been
consummated; all amounts payable by Borrower in connection therewith shall have
been paid or escrowed, or otherwise committed, in favor of sellers of the
capital stock of Maillefer; Borrower shall be the sole owner of approximately
95% of the capital stock of Maillefer and such stock shall be subject to no
claims or encumbrances or rights of assessment; except to the extent that any
failure to do so would not result in a material adverse change to the business
or financial condition of Borrower or Maillefer, Maillefer shall be in
compliance with all applicable Laws (including those relating to the
environment, labor, occupational safety, pension, and the exportation and
importation of goods); and, there are no material claims or suits asserted or
threatened against Maillefer or
127
its property. As soon as practicable and in any event within thirty (30) days
after the date hereof, Borrower shall cause to be provided to Agent and the
Banks an opinion or certificate of Swiss legal counsel to Borrower (or from an
Official Body or from a Person acceptable to the Banks) to the effect that the
foregoing provisions of this Subsection 4.06 are true and correct.
4.07 Assignees.
----------
In the event that any assignee or participant pursuant to Subsection 7.07
is not a party to the Syndicated Agreement, Borrower agrees to provide and to
cause each Guarantor to provide to such assignee or participant all financial
and other information, reports, certificates, notices, and the like which
Borrower or any Guarantor is required pursuant to the Syndicated Agreement to
provide to the original Bank parties to this Agreement.
4.08 Enforceability, No Conflict, Etc.
---------------------------------
Borrower has the corporate power to execute, deliver, and perform this
Agreement, the Notes, and the other Loan Documents; and, the execution,
delivery, and performance of this Agreement, the Notes, and the other Loan
Documents have been duly authorized by all necessary corporate action, require
no approval of any Official Body, and neither now nor hereafter shall
contravene, conflict with, or result in a breach of any Law or any memorandum,
articles, charter or certificate of association or incorporation or any bylaws,
instrument, indenture or agreement, governing or binding upon Borrower or any of
its property. This Agreement, the Notes, and the other Loan Documents shall,
when executed and delivered to Agent, constitute legal, valid, and binding
agreements of Borrower enforceable against Borrower in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by general principles of equity.
SECTION 5
DEFAULT
- -------
5.01 Events of Default.
------------------
An "Event of Default" shall mean the occurrence or existence of any one or
more of the following events or conditions (whatever the reason therefor and
whether voluntary, involuntary or effected by operation of Law):
(a) Default by Borrower in any payment required to be made under this
Agreement or any Note and, in the case solely of interest thereon,
such default shall continue unremedied for five (5) Business Days;
(b) The occurrence of any Event of Default under the
Syndicated Agreement;
128
(c) Default shall be made with respect to the payment of
any amount due under any agreement or other evidence of
Indebtedness for borrowed money (other than defaults as
to payments upon borrowings directly relating to
Clauses (a) or (b) directly above) of Borrower or any
of the Guarantors in an aggregate outstanding principal
amount of $10,000,000 or more or its equivalent in
another currency, or any other default shall be made
with respect to any such Indebtedness and such
Indebtedness shall have been accelerated so that any
payment in respect of such Indebtedness shall be or
become due prior to its maturity or scheduled due date;
(d) Any representation or warranty made by Borrower or any Guarantor
herein or incorporated herein or in any writing furnished in
connection with or pursuant to this Agreement shall be false or
incorrect in any material respect as of the time it was made or
furnished or deemed made or furnished;
(e) Default by Borrower or any Guarantor in the performance or observance
of any covenant, term, condition, or agreement contained or
incorporated herein or in any other Loan Document, if such default
shall not have been remedied within thirty (30) days after the
occurrence thereof, other than defaults referred to in Clauses (a)
through (d) directly above;
(f) This Agreement, any Note, any Guaranty, or any other
Loan Document given now or hereafter in connection
herewith shall (i) not remain in full force and effect,
be declared null and void, or shall not be enforceable
against any of the parties thereto (in whole or in
part) in accordance with its terms and shall not be
reinstated to full force and effect and enforceability
against each party thereto in accordance with its terms
within 30 days or (ii) be disaffirmed or repudiated by
the Borrower or any Guarantor or any successor thereof
or trustee therefor;
(g) A Change in Control shall occur.
5.02 Consequences of Event of Default.
---------------------------------
(a) In the case of the happening of any Event of Default
described above, then, upon the occurrence thereof and
at any time thereafter during the continuance of such
Event of Default, the Agent may (unless, in the case of
each Event of Default other than that specified in
Clause(a) above or in paragraph (b) of Article VII of
the Syndicated Agreement, the Required Banks shall have
waived such Event of Default in writing, and, in the
case of an Event of Default specified in Clause (a)
above or in paragraph (b) of Article VII of the
Syndicated Agreement, each of the Banks shall have
waived such Event of Default in writing), and, upon
129
direction of the Required Banks, will by written notice to Borrower,
take any of the following actions, at the same or different times: (i)
terminate the Term Loan Commitments (if the Term Loans have not yet
been made) and (ii) declare the Notes to be forthwith due and payable,
whereupon the Notes and all other fees and amounts owing hereunder
shall become forthwith due and payable, both as to principal and
interest, without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived, anything contained
herein or in the Notes to the contrary notwithstanding.
Notwithstanding the foregoing, if an Event of Default specified in
paragraph (g) or (h) of Article VII of the Syndicated Agreement occurs
with respect to the Borrower or a Guarantor, the Notes shall become
immediately due and payable, both as to the principal and interest,
without any action by the Agent and without presentment, demand,
protest or any other notice of any kind, all of which are hereby
expressly waived, anything contained herein or in the Notes to the
contrary notwithstanding.
(b) Set-Off.
--------
If any Event of Default shall have occurred and be continuing and any
Bank shall have requested the Agent to declare the Notes immediately
due and payable pursuant to this Section 5, each Bank is hereby
authorized at any time and from time to time, to the fullest extent
permitted by Law, to set off and apply any and all deposits (general
and special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Bank to or for the
credit or the account of the Borrower or any Guarantor against any of
and all the Obligations now or hereafter existing under this Agreement
and the Notes held by such Bank, irrespective of whether or not such
Bank shall have made any demand under this Agreement or such Notes and
although such obligations may be unmatured. Each Bank agrees promptly
to notify the Borrower after any such setoff and application made by
such Bank, but the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Bank under
this Subsection 5.02(b) are in addition to other rights and remedies
(including other rights of setoff) which such Bank may have.
SECTION 6
THE AGENT
- ---------
6.01 Appointment.
------------
Each Bank hereby irrevocably designates, appoints and authorizes ABN
130
AMRO Bank N.V. to act as Agent for such Bank under this Agreement to execute and
deliver or accept on behalf of each of the Banks the other Loan Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of a Note shall be deemed irrevocably to authorize, the Agent to take
such action on its behalf under the provisions of this Agreement and the other
Loan Documents and any other instruments and agreements referred to herein, and
to exercise such powers and to perform such duties hereunder as are specifically
delegated to or required of the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. ABN AMRO Bank N.V. agrees to act as
the Agent on behalf of the Banks to the extent provided in this Agreement.
6.02 Delegation of Duties.
---------------------
The Agent may perform any of its duties hereunder by or through agents or
employees (provided such delegation does not constitute a relinquishment of its
duties as Agent) and, subject to Sections 6.05 and 6.06, shall be entitled to
engage and pay for the advice or services of any attorneys, accountants, or
other experts concerning all matters pertaining to its duties hereunder and to
rely upon any advice so obtained.
6.03 Nature of Duties; Independent Credit Investigation.
---------------------------------------------------
The Agent shall have no duties or responsibilities except those expressly
set forth in this Agreement and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement a
fiduciary or trust relationship in respect of any Bank; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement except as
expressly set forth herein. Each Bank expressly acknowledges: (i) that the Agent
has not made any representations or warranties to it and that no act by the
Agent hereafter taken, including any review of the affairs of any of the
Borrower or any Guarantors or any other Subsidiaries or Affiliates thereof,
shall be deemed to constitute any representation or warranty by the Agent to any
Bank; (ii) that it has made and will continue to make, without reliance upon the
Agent, its own independent investigation of the financial condition and affairs
and its own appraisal of the creditworthiness of each of Borrower, the
Guarantors, and each of their Subsidiaries and Affiliates in connection with
this Agreement and the making and continuance of the Term Loans hereunder; and
(iii) except as expressly provided herein, that the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Bank
with any credit or other information with respect thereto, whether coming into
its possession before the making of the Term Loans or at any time or times
thereafter.
6.04 Actions in Discretion of Agent; Instructions from the
Banks.
-----------------------------------------------------
The Agent agrees, upon the written request of the Required Banks, to take
or refrain from taking any action of the type specified as being within the
Agent's rights, powers or discretion herein, provided that the
131
Agent shall not be required to take any action which exposes the Agent to
personal liability or which is contrary to this Agreement or any other Loan
Document or applicable Law. In the absence of a request by the Required Banks,
the Agent shall have authority, in its sole discretion, to take or not to take
any such action, unless this Agreement specifically requires the consent of the
Required Banks or all of the Banks. Any action taken or failure to act pursuant
to such instructions or discretion shall be binding on the Banks, subject to
Section 6.06. Subject to the provisions of Section 6.06, no Bank shall have any
right of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Banks, or in the absence of such instructions, in the absolute
discretion of the Agent.
6.05 Reimbursement and Indemnification of Agent by the Borrower. --
- ---------------------------------------------------------
Borrower agrees unconditionally upon demand to pay or reimburse the Agent
and save the Agent harmless against (a) liability for the payment of all
reasonable out-of-pocket costs, expenses and disbursements (including the
reasonable fees and expenses of counsel for the Agent) incurred by Agent (i) in
connection with the negotiation, preparation, printing, execution,
administration, syndication, and interpretation of this Agreement and the other
Loan Documents, (ii) relating to any amendments, waivers, or consents pursuant
to the provisions hereof, (iii) in connection with the enforcement of this
Agreement or any other Loan Document or collection of amounts due hereunder or
thereunder or the proof and allowability of any claim arising under this
Agreement or any other Loan Document, whether in bankruptcy, receivership, or
similar proceedings or otherwise, and (iv) in connection with any workout or
restructuring, or in connection with the protection, preservation, exercise, or
enforcement of any of the terms hereof or of any rights hereunder or under any
other Loan Document, or in connection with any foreclosure, collection, or
bankruptcy proceedings, and (b) all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including reasonable
attorneys' fees), or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent, in its capacity as such,
in any way relating to or arising out of this Agreement or any other Loan
Documents or any action taken or omitted by the Agent hereunder or thereunder,
provided that Borrower shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements to the extent the same is found by a final judgment
to have resulted from the Agent's gross negligence or willful misconduct, or if
the Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that the Borrower
shall remain liable to the extent such failure to give notice does not result in
a loss to the Borrower), or if the same results from a compromise or settlement
agreement entered into without the consent of the Borrower, which shall not be
unreasonably withheld. Borrower agrees unconditionally to pay all excise and
similar taxes, and all stamp, document, transfer, recording, and filing taxes or
fees and similar impositions, and any and all penalties related thereto, now or
hereafter determined by Agent to be payable in connection with this Agreement,
any Note, any other document or agreement executed or given in connection
herewith, or any transactions or actions taken hereunder or thereunder, and
Borrower agrees unconditionally to save Agent harmless from and against any and
all present or future claims, penalties, liabilities, or losses with respect to
or resulting from any
132
omission to pay or delay in paying any such taxes, fees, or impositions.
6.06 Exculpatory Provisions.
-----------------------
Neither the Agent nor any of its directors, officers, employees, agents,
attorneys, Affiliates, or Subsidiaries shall (a) be liable to any Bank for any
action taken or omitted to be taken by it or them hereunder, or in connection
herewith including pursuant to any Loan Document, unless to the extent the same
is found by a final judgment to have resulted from its or their own gross
negligence or willful misconduct, (b) be responsible in any manner to any of the
Banks for the effectiveness, enforceability, genuineness, validity, or the due
execution of this Agreement or any other Loan Documents or for any recital,
representation, warranty, document, certificate, report, or statement herein or
made or furnished under or in connection with this Agreement or any other Loan
Documents, or (c) be under any obligation to any of the Banks to ascertain or to
inquire as to the performance or observance of any of the terms, covenants, or
conditions hereof or thereof on the part of Borrower, any Guarantor or any other
Subsidiary or Affiliate of Borrower, or the financial condition of any of them,
or the existence or possible existence of any Event of Default or potential
default hereunder or under the Syndicated Agreement. Neither the Agent nor any
Bank nor any of their respective directors, officers, employees, agents,
attorneys, subsidiaries, or affiliates shall be liable to Borrower, any
Guarantor, or any Subsidiary or Affiliate of Borrower for consequential damages
resulting from any breach of contract, tort, or other wrong in connection with
the negotiation, documentation, administration, or collection of any portion of
the Term Loans or any of the Loan Documents.
6.07 Reimbursement and Indemnification of Agent by Banks.
----------------------------------------------------
Each Bank agrees to reimburse and indemnify the Agent (to the extent not
reimbursed by the Borrower and without limiting the Obligation of the Borrower
to do so) in proportion to its Ratable Share from and against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including reasonable attorneys' fees), or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Agent, in its capacity as such, in any way relating to or arising out of this
Agreement or any other Loan Documents or any action taken or omitted by the
Agent hereunder or thereunder, provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements (a) to the extent the same
is found by a final judgment to have resulted from the Agent's gross negligence
or willful misconduct, or (b)if such Bank was not given notice of the subject
claim and the opportunity to participate in the defense thereof at its expense
(except that such Bank shall remain liable to the extent such failure to give
notice does not result in a loss to the Bank), or (c) if the same results from a
compromise and settlement agreement entered into without the consent of such
Bank, which shall not be unreasonably withheld.
6.08 Reliance by Agent.
------------------
The Agent shall be entitled to rely upon any writing, telegram, telex
133
or teletype message, resolution, notice, consent, certificate, letter,
cablegram, statement, order, or other document or conversation by telephone or
otherwise believed by it to be genuine and correct and to have been signed,
sent, or made by the proper Person or Persons, and upon the advice and opinions
of counsel and other professional advisers selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any action hereunder
unless it shall first be indemnified to its satisfaction by the Banks against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
6.09 Notice of Default.
------------------
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any potential default or Event of Default unless the Agent has
received written notice from a Bank or the Borrower referring to this Agreement,
describing such potential default or Event of Default and stating that such
notice is a "notice of default."
6.10 Notices.
--------
The Agent shall send to each Bank a copy of all notices received from the
Borrower pursuant to the provisions of this Agreement or the other Loan
Documents promptly upon receipt thereof.
6.11 Banks in Their Individual Capacities.
-------------------------------------
With respect to the Term Loan made by it, the Agent shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not the Agent, and the term "Banks" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. ABN AMRO Bank
N.V. and its Affiliates and Subsidiaries and each of the Banks and their
respective Subsidiaries and Affiliates may, without liability to account, except
as prohibited herein, make loans to, accept deposits from, discount drafts for,
act as trustee under indentures of, and generally engage in any kind of banking
or trust business with, the Borrower, any Guarantor, and their Subsidiaries and
Affiliates, in the case of the Agent, as though it were not acting as Agent
hereunder and, in the case of each Bank, as though such Bank were not a Bank
hereunder.
6.12 Holders of Notes.
-----------------
The Agent may deem and treat any payee of any Note as the owner thereof
for all purposes hereof unless and until written notice of the assignment or
transfer thereof shall have been filed with the Agent. Any request, authority,
or consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, or assignee of such Note or of any Note or
Notes issued in exchange therefor.
6.13 Equalization of Banks.
----------------------
The Banks and the holders of any participations in any Notes agree
134
among themselves that, with respect to all amounts received by any Bank or any
such participant for application on any Obligation hereunder or under any Note
or under any such participation, whether received by voluntary payment, by
realization upon security, by the exercise of the right of set-off or banker's
lien, by counterclaim or by any other non-pro rata source, equitable adjustment
will be made in the manner stated in the following sentence so that, in effect,
all such excess amounts will be shared ratably among the Banks and such
participants in proportion to their interests in payments under the Notes,
except as otherwise provided in Subsections 2.12(b), 2.14(b), 2.15, 2.16, 6.05,
6.07, or 7.03. The Banks or any such participant receiving any such amount shall
purchase for cash from each of the other Banks an interest in such Bank's Term
Loans in such amount as shall result in a ratable participation by the Banks and
each such holder in the aggregate unpaid amount under the Notes, provided that
if all or any portion of such excess amount is thereafter recovered from the
Bank or the participant making such purchase, such purchase shall be rescinded
and the purchase price restored to the extent of such recovery, together with
interest or other amounts, if any, required by Law to be paid by the Bank or the
participant making such purchase.
6.14 Successor Agent.
----------------
The Agent (a) may resign as Agent or (b) shall resign if such resignation
is requested by the Required Banks (if the Agent is a Bank, the Agent's Term
Loans and its Term Loan Commitment shall be considered in determining whether
the Required Banks have requested such resignation), in either case of (a) or
(b) by giving not less than thirty (30) days' prior written notice to the
Borrower. If the Agent shall resign under this Agreement, then either (i) the
Required Banks shall appoint from among the Banks a successor agent for the
Banks, subject to the consent of the Borrower, such consent not to be
unreasonably withheld, or (ii) if a successor agent shall not be so appointed
and approved within the thirty (30) day period following the Agent's notice to
the Banks of its resignation, then the Agent shall appoint, with the consent of
the Borrower, such consent not to be unreasonably withheld, a successor agent
who shall serve as Agent until such time as the Required Banks appoint and the
Borrower consents to the appointment of a successor agent. Upon its appointment
pursuant to either Clause (i) or (ii) above, such successor agent shall succeed
to the rights, powers, and duties of the Agent and the term "Agent" shall mean
such successor agent, effective upon its appointment, and the former Agent's
rights, powers, and duties as Agent shall be terminated without any other or
further act or deed on the part of such former Agent or any of the parties to
this Agreement. After the resignation of any Agent hereunder, the provisions of
this Section 6 shall inure to the benefit of such former Agent.
6.15 Availability of Funds.
----------------------
Unless the Agent shall have been notified by a Bank prior to the date upon
which a Term Loan is to be made that such Bank does not intend to make available
to the Agent such Bank's Term Loan or a portion thereof, the Agent may assume
that such Bank has made or will make such proceeds available to the Agent on
such date and the Agent may, in reliance upon such assumption (but shall not be
required to), make available to the Borrower a corresponding amount. If such
corresponding amount is not in
135
fact made available to the Agent by such Bank, the Agent shall be entitled to
recover such amount on demand from such Bank (or, if such Bank fails to pay such
amount forthwith upon such demand from the Borrower) together with interest
thereon (all in the currency in which such loan was made), in respect of each
day during the period commencing on the date such amount was made available to
the Borrower and ending on the date the Agent recovers such amount, at a rate
per annum equal to the applicable interest rate(s) in respect of such Term Loan
or relevant portion thereof.
6.16 Calculations.
-------------
In the absence of a final judgment of gross negligence or willful
misconduct on the part of Agent, the Agent shall not be liable for any error in
computing any amount payable to any Bank whether in respect of the Term Loans,
fees, or any other amounts due to the Banks under this Agreement. In the event
an error in computing any amount payable to any Bank is made, the Agent, the
Borrower, and each affected Bank shall, forthwith upon discovery of such error,
make such adjustments as shall be required to correct such error.
6.17 Beneficiaries.
--------------
Except as expressly provided herein, the provisions of this Section 6 are
solely for the benefit of the Agent and the Banks, and none of the Borrower,
Guarantors or any Subsidiaries or Affiliates thereof shall have any rights to
rely on or enforce any of the provisions hereof. In performing its functions and
duties under this Agreement, the Agent shall act solely as agent of the Banks
and does not assume and shall not be deemed to have assumed any obligation
toward or relationship of agency or trust with or for the Borrower, any
Guarantors or any Subsidiaries or Affiliates thereof.
SECTION 7
MISCELLANEOUS
- -------------
7.01 Modifications, Amendments or Waivers.
-------------------------------------
With the written consent of the Required Banks, the Agent, acting on
behalf of all the Banks, and the Borrower may from time to time enter into
written agreements amending or changing any provision of this Agreement or any
other Loan Document or the rights of the Banks, Borrower, or Guarantors
hereunder or thereunder, or may grant written waivers or consents to a departure
from the due performance of the Obligations of Borrower or any Guarantor
hereunder or thereunder. Any such agreement, waiver, or consent made with such
written consent shall be effective to bind all the Banks and Borrower and each
Guarantor; provided, that, without the written consent of all the Banks, no such
agreement, waiver, or consent may be made which will:
(a) increase the amount of the Term Loan Commitment of any Bank hereunder
(subject, however, to the potential increase in Term Loan Commitments
addressed by
136
Subsection 2.13(b)) or extend the Termination Date;
(b) extend the time for payment of principal or interest of any Term Loan
or Borrowing Tranche or the Facility Fee, or reduce the principal
amount of or the rate of interest borne by any Borrowing Tranche or
reduce any Facility Fee, or otherwise affect the terms of payment of
the principal of or interest of any Term Loan or Borrowing Tranche or
any fee payable to any Bank; or
(c) amend Subsections 2.10, 6.06, 6.13, or this Section 7.01, alter any
provision regarding the pro rata treatment of the Banks, change the
definition of Required Banks, or change any requirement providing for
the Banks or the Required Banks to authorize the taking of any action
hereunder.
No agreement, waiver, or consent which would modify the interests, rights,
or obligations of the Agent in its capacity as Agent shall be effective without
the written consent of the Agent.
7.02 No Implied Waivers; Cumulative Remedies; Writing Required.
----------------------------------------------------------
No course of dealing and no delay or failure of the Agent or any Bank in
exercising any right, power, remedy, or privilege under this Agreement or any
other Loan Document shall affect any other or future exercise thereof or operate
as a waiver thereof; nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power, remedy,
or privilege preclude any further exercise thereof or of any other right, power,
remedy, or privilege. The rights and remedies of the Agent and the Banks under
this Agreement and any other Loan Documents are cumulative and not exclusive of
any rights or remedies which they would otherwise have. Any waiver, permit,
consent, or approval of any kind or character on the part of any Bank of any
breach or default under this Agreement or any such waiver of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing. In the event of any
irreconcilable inconsistency between the terms of this Agreement, the Note, or
any other document or agreement executed or given in connection herewith, the
terms hereof shall control.
7.03 Reimbursement and Indemnification of Banks by the Borrower;
Taxes.
-----------------------------------------------------------
The Borrower agrees unconditionally upon demand to pay or reimburse to
each Bank (other than the Agent solely in such capacity, as to which the
Borrower's Obligations are set forth in Section 6.05) and to save each Bank
harmless against (a) liability for the payment of all reasonable out-of-pocket
costs, expenses, and disbursements (including reasonable fees and expenses of
counsel for each Bank except with respect to (i) and (ii) below), incurred by
such Bank (i) in connection with the administration and interpretation of this
Agreement and the other Loan Documents, (ii) relating to any amendments,
waivers, or consents pursuant to the provisions hereof, (iii) in connection with
the enforcement of this Agreement or any
137
other Loan Document or collection of amounts due hereunder or thereunder or the
proof and allowability of any claim arising under this Agreement or any other
Loan Document, whether in bankruptcy, receivership, or similar proceedings or
otherwise, and (iv) in connection with any workout or restructuring, or in
connection with the protection, preservation, exercise, or enforcement of any of
the terms hereof or of any rights hereunder or under any other Loan Document, or
in connection with any foreclosure, collection, or bankruptcy proceedings, or
(b) all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including reasonable attorneys' fees), or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against such Bank, in its capacity as such, in any way relating
to or arising out of this Agreement or any other Loan Documents or any action
taken or omitted by such Bank hereunder or thereunder, provided that Borrower
shall not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or disbursements
(A) to the extent the same is found by a final judgment to have resulted from
such Bank's gross negligence or willful misconduct, or (B)if the Borrower was
not given notice of the subject claim and the opportunity to participate in the
defense thereof, at its expense (except that the Borrower shall remain liable to
the extent such failure to give notice does not result in a loss to the
Borrower), or (C) if the same results from a compromise or settlement agreement
entered into without the consent of the Borrower, which shall not be
unreasonably withheld. Borrower agrees unconditionally to pay all stamp,
intangible, document, transfer, recording or filing taxes or fees and similar
impositions now or hereafter determined by any Bank to be payable in connection
with this Agreement, any Note, or any other Loan Document, or any transactions
or actions taken hereunder or thereunder, and Borrower agrees unconditionally to
save Banks harmless from and against any and all present or future claims,
penalties, liabilities, or losses with respect to or resulting from any omission
to pay or delay in paying any such taxes, fees, or impositions.
7.04 Holidays.
---------
Whenever any payment or action to be made or taken hereunder shall be
stated to be due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day (except as provided in
Subsection 2.07 with respect to Interest Periods) and such extension of time
shall be included in computing interest or fees, if any, in connection with such
payment or action.
7.05 Funding by Branch, Subsidiary or Affiliate.
-------------------------------------------
(a) Notional Funding.
-----------------
Each Bank shall have the right from time to time, without notice to
Borrower, to deem any branch, Subsidiary, or Affiliate of such Bank to
have made, maintained, or funded any Term Loan or any portion thereof
provided that immediately following and as a result of such change
Borrower would not be under any greater financial obligation pursuant
to Subsection
138
2.15 than it would have been in the absence of such change. Notional
funding offices may be selected by each Bank without regard to the
Bank's actual methods of making, maintaining, or funding the Loans or
any sources of funding actually used by or available to such Bank.
(b) Actual Funding.
---------------
Each Bank shall have the right from time to time to make or maintain
any Term Loan or portion thereof by arranging for a branch,
Subsidiary, or Affiliate of such Bank to make or maintain such Term
Loan or a portion thereof subject to the last sentence of this
Subsection 7.05(b). If any Bank causes a branch, Subsidiary, or
Affiliate of such Bank to make or maintain any part of the Term Loans
hereunder, all terms and conditions of this Agreement shall, except
where the context clearly requires otherwise, be applicable to such
part of the Term Loans to the same extent as if such Term Loans were
made or maintained by such Bank, but in no event shall any Bank's use
of such a branch, Subsidiary, or Affiliate to make or maintain any
part of the Term Loans hereunder cause such Bank or such branch,
Subsidiary, or Affiliate to incur any material cost or expenses
payable by the Borrower hereunder or require the Borrower to pay any
other material compensation to any Bank (including any expenses
incurred or payable pursuant to Subsection 2.15) which would otherwise
not be incurred.
7.06 Notices.
--------
All notices, requests, demands, directions, and other communications (as
used in this Section 7.06 collectively referred to as "notices") given to or
made upon any party hereto under the provisions of this Agreement shall be in
writing (including telex or facsimile communication) unless otherwise expressly
permitted hereunder and shall be delivered or sent by telex or facsimile to the
respective parties at the addresses and numbers set forth under their respective
names on the signature pages hereof or in accordance with any subsequent
unrevoked written direction from any party to the others. All notices shall,
except as otherwise expressly herein provided, be effective (a) in the case of
telex or facsimile, when received, (b) in the case of hand-delivered notice,
when hand delivered, (c) in the case of telephone, when telephoned, provided,
however, that in order to be effective, telephonic notices must be confirmed in
writing no later than the next day by hand delivery, facsimile or telex, (d) if
given by mail, four (4) days after such communication is deposited in the mails
with first class postage prepaid, return receipt requested, and (e) if given by
any other means (including by air courier), when delivered; provided, that
notices to the Agent shall not be effective until received. Any Bank giving any
notice to Borrower or any Guarantor shall simultaneously send a copy thereof to
the Agent and other Banks.
7.07 Successors and Assigns; Participations; Assignments.
139
----------------------------------------------------
This Agreement shall be binding upon and shall inure to the benefit of the
Banks, the Agent, Borrower, and their respective successors and assigns, except
that Borrower may not assign or transfer any of its rights or Obligations
hereunder or any interest herein.
(a) Each Bank may without the consent of the Borrower sell
participations to one or more banks or other entities
in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Term
Loan Commitment and the Term Loans owing to it and the
Notes held by it); provided, however, that (i) such
Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the
performance of such obligations, (iii) the
participating banks or other entities shall be entitled
to the cost protection provisions contained in
Subsection 2.15 but shall not be entitled to receive
pursuant to such provisions an amount larger than its
share of the amount to which the Bank granting such
participation would have been entitled and (iv)
Borrower, Agent, and the other Banks shall continue to
deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this
Agreement; provided, further, that each Bank shall
retain the sole right and responsibility vis-a-vis
Borrower to enforce the obligations of Borrower
relating to the Term Loans and shall retain all voting
rights, including the right to approve any amendment,
modification, or waiver of any provision of this
Agreement other than amendments, modifications, or
waivers with respect to any Facility Fees, the amount
of principal or the rate of interest payable on, or the
maturity of, the Term Loans as applicable to the
participating banks or other entities (as to which such
participating banks or other entities shall be afforded
the right to vote).
(b) Each of the Banks originally party hereto may
(but only with the prior written consent of Borrower,
which consent shall not be unreasonably withheld, and
(unless the assignee is a bank or trust company with a
combined capital and surplus of at least $100,000,000)
with the written consent of Agent, which consent shall
not be unreasonably withheld) assign to one or more
banks or other entities all or a portion of its
interests, rights, and obligations under this Agreement
(including all or a portion of its Term Loan Commitment
and the same portion of the Term Loans at the time
owing to it and the Notes held by it); provided,
however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of the
assigning Bank's rights and obligations under this
Agreement, and (ii) the amount of the Term Loan
Commitment and Term Loan of the assigning Bank subject
140
to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment is delivered to the
Bank) shall be either the entire Term Loan Commitment or Term Loan of
such Bank or a portion thereof in a principal amount of $5,000,000 or
a larger integral multiple of $1,000,000, and (iii) the parties to
each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register (as defined below), an
Assignment and Acceptance, together with any Note or Notes subject to
such assignment and a processing and recordation fee of $3,500. Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which
effective date shall be not earlier than five (5) Business Days after
the date of acceptance and recording by the Agent, (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 Bank
hereunder and under the other Loan Documents and (y) the assigning
Bank 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 the assigning Bank's rights and obligations under
this Agreement, such assigning Bank shall cease to be a party hereto).
(c) Notwithstanding the other provisions of this Subsection
7.07, each Bank may at any time assign all or a portion
of its interests, rights, and obligations under this
Agreement (including, without limitation, all or a
portion of its Term Loan Commitment and the same
portion of the Term Loans at any time owing to it and
the Notes held by it) to (i) any Affiliate of such Bank
described in clause (b) of the definition of Affiliate
or (ii) any other Bank hereunder.
(d) By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the
assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i)
other than the representation and warranty that it is
the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim,
the assigning Bank makes no representation or warranty
and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement or the execution,
legality, validity, enforceability, genuineness,
sufficiency, or value of the Loan Documents or any
other instrument or document furnished pursuant hereto
or thereto; (ii) such Bank assignor makes no
representation or warranty and assumes no
responsibility with respect to the financial condition
of the Borrower, any Guarantor, or any of the
141
Subsidiaries or Affiliates of Borrower or any Guarantor or any other
obligor under the Loan Documents or the performance or observance by
the Borrower (on behalf of itself or its Subsidiaries or Affiliates)
or any of the Guarantors or any other obligor under the Loan Documents
of any of their respective obligations under the Loan Documents or any
other instrument or document furnished pursuant hereto or thereto;
(iii) such assignee confirms that it has received a copy of this
Agreement and the Syndicated Agreement, together with copies of the
most recent financial statements delivered pursuant to Sections
5.05(a) and 5.05(b) of the Syndicated Agreement (or if none of such
financial statements shall have then been delivered, then copies of
the financial statements referred to in Section 3.05 thereof) and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without
reliance upon the assigning Bank, the Agent, or any other Person that
has become a Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v)
such assignee appoints and authorizes the Agent to take such action as
the Agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(e) The Agent shall maintain at its address at which
notices are to be given to it pursuant to Subsection
7.06 a copy of each Assignment and Acceptance and a
register for the recordation of the names and addresses
of the Banks and the Term Loan Commitments of, and
principal amount of the Term Loans owing to, each Bank
from time to time (the "Register"). The entries in the
Register shall be conclusive, in the absence of
manifest error, and Borrower, Agent and the Banks may
treat each Person whose name is recorded in the
Register as a Bank hereunder for all purposes of the
Loan Documents. The Register shall be available for
inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable
prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee together with any Notes subject to such
assignment and evidence of the Borrower's written consent to such
assignment, the Agent shall, if such Assignment and Acceptance has
been completed and is in the form of Exhibit A hereto, (i) accept such
Assignment and Acceptance, (ii) record
142
the information contained therein in the Register and (iii) give
prompt written notice thereof to the Borrower. Within five (5)
Business Days after receipt of the notice, the Borrower, at its own
expense, shall execute and deliver to the Bank, in exchange for the
surrendered Notes, (x) a new Note or Notes to the order of such
assignee in an amount and currency equal to the portion of the Term
Loan Commitment or Term Loan assumed by it pursuant to such Assignment
and Acceptance and, (y) a new Note or Notes to the order of the
assigning Bank in an amount and currency equal to the portion of the
Term Loan Commitment or Term Loan retained by it hereunder. Such new
Notes shall be in the aggregate principal amount and Optional
Currencies equal to the aggregate principal amount in such Optional
Currencies of such assumed Term Loan Commitment or Term Loan and
retained Term Loan Commitment or Term Loan, such new Notes shall be
dated the date of the surrendered Notes and shall otherwise be in
substantially the forms of the Notes. In addition, the Borrower will
promptly, at its own expense, execute such amendments to the Loan
Documents and to such additional documents and cause the Guarantors to
execute amendments to the Loan Documents to which any of them is a
party, and take such other actions as the Agent or the assignee Bank
may reasonably request in order to confirm that such assignee Bank is
entitled to the full benefit of the Guaranties to the extent of such
assignment.
(g) Notwithstanding any other provision herein, any Bank
may, in connection with any assignment or participation
or proposed assignment or participation pursuant to
this Subsection 7.07, disclose to the assignee or
participant or proposed assignee or participant, any
information relating to Borrower, Guarantors, or any of
the Subsidiaries or Affiliates thereof furnished to
such Bank or the Agent by or on behalf of the Borrower,
Guarantors or Subsidiaries or Affiliates thereof;
provided, that prior to any such disclosure, each such
assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality
of any confidential information relating to the
Borrower or any of their Subsidiaries received from
such Bank on the terms of Subsection 7.08.
(h) Any Bank may at any time pledge or assign all or any portion of its
rights under this Agreement and the Notes to a Federal Reserve Bank.
7.08 Confidentiality.
----------------
The Agent and the Banks each agree to keep confidential all information
obtained from Borrower, any Guarantor, or any Subsidiary or Affiliate of either
which is nonpublic and confidential or proprietary in nature (including any
information the Borrower specifically designates as
143
confidential), except as provided below, and to use such information only in
connection with their respective capacities under this Agreement and for the
purposes contemplated hereby. The Agent and the Banks shall be permitted to
disclose such information (i) to outside legal counsel, accountants and other
professional advisors who need to know such information in connection with the
administration and enforcement of this Agreement, (ii) to assignees and
participants as contemplated by Subsection 7.07, (iii) to the extent requested
by any bank regulatory authority, any external auditor, or, with notice to the
Borrower, as otherwise required by applicable Law or by any subpoena or similar
legal process, or in connection with any investigation or proceeding arising out
of the transactions contemplated by this Agreement, (iv) if it becomes publicly
available other than as a result of a breach of this Agreement or becomes
available from a source not subject to confidentiality restrictions, or (v) if
the Borrower shall have consented to such disclosure.
7.09 Counterparts; Telecopy Signatures.
----------------------------------
This Agreement may be executed by different parties hereto on any number
of separate counterparts, each of which, when so executed and delivered, shall
be an original, and all such counterparts shall together constitute one and the
same instrument. Telecopy transmission to Agent of signature pages of this
Agreement or any other Loan Document executed by any party hereto shall
constitute effective and binding execution and delivery of this Agreement or
such other Loan Document by such transmitting party.
7.10 Agent's or Bank's Consent.
--------------------------
Except as expressly otherwise set forth herein, whenever the Agent's or
any Bank's consent is required to be obtained under this Agreement or any of the
other Loan Documents as a condition to any action, inaction, condition or event,
the Agent and each Bank shall be authorized to give or withhold such consent in
its sole and absolute discretion and to condition its consent upon the giving of
additional collateral, the payment of money or any other matter.
7.11 Exceptions.
-----------
The representations, warranties and covenants contained herein shall be
independent of each other and no exception to any representation, warranty, or
covenant shall be deemed to be an exception to any other representation,
warranty, or covenant contained herein unless expressly provided, nor shall any
such exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.
7.12 Tax Withholding Clause.
-----------------------
Each Bank or assignee or participant of a Bank that is not organized under
the Laws of the United States or a state thereof (each a "non US Bank") and each
Bank or assignee or participant of a Bank that is not organized under the Laws
of the United Kingdom or a political subdivision thereof (each, a "non-UK Bank")
agrees that it will deliver to each of the
144
Borrower and the Agent two (2) duly completed copies of the following: (i) for a
non-US Bank, United States Internal Revenue Service Form W-9, 4224 or 1001, or
other applicable form prescribed by the Internal Revenue Service, certifying
that such Bank, assignee, or participant is entitled to receive payments under
this Agreement and the other Loan Documents without deduction or withholding of
any United States federal income taxes, or is subject to such tax at a reduced
rate under an applicable tax treaty, or (ii) Internal Revenue Service Form W-8
or other applicable form or a certificate of the Bank, assignee or participant
indicating that no such exemption or reduced rate is allowable with respect to
such payments, and for a non-UK Bank, United Kingdom Inland Revenue Form REF FD
13, or other applicable form prescribed by Inland Revenue, certifying such Bank,
assignee, or participant is entitled to receive payments under this Agreement
and the other Loan Documents without deduction or withholding of any United
Kingdom or English income or other tax. Each Bank, assignee or participant
required to deliver to the Borrower and the Agent a form or certificate pursuant
to the preceding sentence shall deliver such form or certificate as follows: (A)
each Bank which is a party hereto on the Closing Date shall deliver such form or
certificate no later than five (5) Business Days after the Closing Date; (B)
each assignee or participant shall deliver such form or certificate at least
five (5) Business Days before the effective date of such assignment or
participation (unless the Agent in its sole discretion shall permit such
assignee or participant to deliver such form or certificate less than five (5)
Business Days before such date in which case it shall be due on the date
specified by the Agent). Each Bank, assignee or participant which so delivers an
Internal Revenue Service Form W-8, W-9, 4224 or 1001 or an Inland Revenue Form
REF FD 13 further undertakes to deliver to each of the Borrower and the Agent
two (2) additional copies of each such form (or a successor form) on or before
the date that such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent, either certifying that such Bank,
assignee, or participant is entitled to receive payments under this Agreement
and the other Loan Documents without deduction or withholding of any United
States federal income taxes or United Kingdom or English income or other tax or
is subject to such tax at a reduced rate under an applicable tax treaty or
stating that no such exemption or reduced rate is allowable. The Agent shall be
entitled to withhold United States federal income taxes and Borrower shall be
entitled to withhold United Kingdom or English income and other taxes at the
full withholding rate unless the Bank, assignee, or participant (x) with respect
to United States federal income taxes, establishes an exemption or that it is
subject to a reduced rate as established pursuant to the above provisions or (y)
with respect to United Kingdom or English income or other tax, provides such
Inland Revenue form as set forth above; and, (z) with respect to any Bank, the
provisions of Subsections 2.16(a) and (b) shall not apply as to United Kingdom
or English law matters until such Inland Revenue form is provided as set forth
in this Subsection 7.12.
7.13 Notification.
-------------
Borrower shall promptly notify Bank in the event of:
(a) Any Event of Default;
145
(b) The commencement of any material litigation by or
against or involving Borrower or any Guarantor;
(c) Any proposed sale or transfer of substantially all of
the assets of Borrower or any Guarantor; and
(d) Any change or other amendment to any organizational documents of
Borrower or any Guarantor or in the ownership of Borrower or any
Guarantor.
7.14 Bank's Duties Upon Payment in Full by Borrower.
-----------------------------------------------
Upon indefeasible payment in full of all Obligations hereunder and the
termination of each Bank's obligations, if any, to make further Term Loans to
Borrower, each Bank shall execute cancellations of all financing statements or
other documents, if any, which may have previously been filed and recorded in
public offices by or on behalf of such Bank evidencing Borrower's Obligations to
Bank and the security therefor, and shall deliver to Borrower its Term Note
marked "Paid in Full" or otherwise appropriately canceled (the cost of recording
the cancellation of financing statements and the like shall be borne by
Borrower).
7.15 Severability.
-------------
The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction, the remainder of this Agreement shall continue to
be valid and enforceable in such jurisdiction, and all of this Agreement shall
continue to be valid and enforceable in all other jurisdictions.
7.16 Governing Law.
--------------
This Agreement shall be deemed to be a contract under the laws of the
Commonwealth of Pennsylvania and for all purposes shall be governed by and
construed and enforced in accordance with the internal laws of the Commonwealth
of Pennsylvania without regard to its conflict of laws principles.
7.17 Prior Understanding.
--------------------
This Agreement, the Note, and any other documents or agreements
incorporated herein or executed or given in connection herewith, supersede all
prior understandings and agreements, whether written or oral, between the
parties hereto relating to the Term Loans, except that those portions of the
mandate letters from Agent to Borrower and DII, respectively dated as of April
12 and 17, 1995, relating to reimbursement of costs and expenses of Agent,
indemnification of Agent (and any guaranty of any such payments), and fees
payable to Agent shall survive the execution and delivery of the Loan Documents
and the making and continuation of the Term Loans and shall be Borrower
Obligations hereunder.
7.18 Duration; Survival; Failure of Closing Date.
146
--------------------------------------------
All representations and warranties of Borrower made or incorporated herein
or made in connection herewith shall survive the making of Term Loans and shall
not be waived by the execution and delivery of this Agreement, any investigation
by Agent or any Bank, or payment in full of the Term Loans. All covenants and
agreements of Borrower contained or incorporated herein shall continue in full
force and effect from and after the date hereof until indefeasible payment in
full of all Term Loans. All covenants and agreements of Borrower contained or
incorporated herein relating to the payment of principal, interest, premiums,
additional compensation, expenses, or indemnification, shall survive payment in
full of the Term Loans and termination thereof. In the event that the Term Loans
are not made on or before the Borrowing Date, the Term Loan Commitments shall
expire and no Bank or Agent shall have any obligations hereunder.
7.19 Consent to Jurisdiction; Waiver of Immunities; Waiver of
Jury Trial.
--------------------------------------------------------
(a) Consent to Jurisdiction.
------------------------
Each of Borrower and each Bank hereby irrevocably submits to the
jurisdiction of any Pennsylvania State or Federal court sitting in
Pittsburgh, Pennsylvania, in any action or proceeding arising out of or
relating to this Agreement or any Note, and each of Borrower and each Bank
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Pennsylvania State or
Federal court. Each of Borrower and each Bank hereby irrevocably waives,
to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of any such action or proceeding.
Borrower hereby appoints the process agent identified below (the "Process
Agent") as its agent to receive on behalf of Borrower and its respective
property service of copies of the summons and complaint and any other
process which may be served in any action or proceeding. Such service may
be made by mailing or delivering a copy of such process to Borrower in
care of the Process Agent at the Process Agent's address, and Borrower
hereby authorizes and directs the Process Agent to receive such service on
its behalf. Borrower agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
(or political subdivision thereof) by suit on the judgment or in any other
manner provided by Law. Borrower further agrees that it shall, for so long
as any Obligation hereunder of Borrower to any of the Banks or Agent
remains outstanding, continue to retain Process Agent for the purposes set
forth in this Subsection 7.19(a). The Process Agent is C.T. Corporation
System with an office on the date hereof at 1633 Broadway, New York, New
York 10019 United States. Borrower shall produce to the Banks evidence of
the acceptance by Process Agent of such appointment on or
147
before the Closing Date.
(b) Non-Exclusive Jurisdiction.
---------------------------
Nothing in this Section shall affect the right of Agent or any Bank
to serve legal process in any other manner permitted by Law or affect the
right of Agent or any Bank to bring any action or proceeding against
Borrower or any of their respective property in the courts of any other
jurisdiction or jurisdictions.
(c) Waiver of Sovereign Immunity.
-----------------------------
To the extent that Borrower has or hereafter may acquire any immunity
from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid
of execution, execution, or otherwise) with respect to itself or its
property, Borrower hereby irrevocably waives such immunity in respect of
its Obligations under this Agreement and each Note and any other document
or agreement executed or given in connection herewith, and Borrower agrees
that it will not raise or claim any such immunity at or in respect of any
such action or proceeding.
(d) Waiver of Jury Trial.
---------------------
EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO WAIVES ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT,
ANY OTHER LOAN DOCUMENT AND ANY OF THE OTHER DOCUMENTS OR TRANSACTIONS
CONTEMPLATED HEREIN OR THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal as of the day and year first above written.
ATTEST: DENTSPLY LIMITED
By:
Title:
[Seal]
Address for Notices:
Hamm Moor Lane, Addlestone
Weybridge, Surrey KT15 2SE
ENGLAND
Telecopier No. ( ) -
--- ---- ------
Attention: Edward D. Yates
Telephone No. ( ) -
--- ---- ------
148
With a copy to:
DENTSPLY INTERNATIONAL INC.
570 West College Avenue
P.O. Box 872
York, PA 17405-0872
Telecopier No. (717) 846-0256
Attention: Paul Wannemacher
Telephone No. (717) 849-4262
149
ABN AMRO BANK N.V., individually and as Agent
By:
Title:
By:
Title:
Address for Notices:
335 Madison Avenue
14th Floor
New York, New York 10017
Telecopier No. (212) ____-_______
Attention: Linda Boardman/Maxine Cordero
Telephone No. (212) 370-8509
With copy to:
One PPG Place - Suite 2950
Pittsburgh, PA 15222-5400
Telecopier No. (412) 566-2266
Attention: Roy D. Hasbrook
Telephone No. (412) 566-2263
150
MULTI-CURRENCY TERM LOAN AGREEMENT
AMONG
DENTSPLY LIMITED,
THE BANKS NAMED HEREIN,
AND
ABN AMRO BANK N.V.,
AS AGENT
TABLE OF CONTENTS
- -----------------
Page
----
SECTION 1 DEFINITIONS 1
1.01 Terms Defined in Syndicated Agreement; Listed
Definitions 1
1.02 Miscellaneous Definitions, Usage, and Meanings 6
SECTION 2 TERM LOANS 7
2.01 Term Loan Commitments 7
2.02 Nature of Banks' Obligations with Respect to
Term Loans 7
2.03 Term Loan Facility Fee 7
2.04 Term Loan Notes; Principal Repayment Date 7
2.05 Use of Proceeds 7
2.06 Interest Rate, Borrowing Tranches, Currency 7
2.07 Interest Periods 8
2.08 Selection of Interest Periods 9
2.09 Payments 9
2.10 Pro Rata Treatment of Banks 9
2.11 Interest Payment Dates 9
2.12 Voluntary Prepayments 10
2.13 Mandatory Payment and Prepayment 11
2.14 LIBOR Rate Unascertainable 11
2.15 Additional Compensation in Certain
Circumstances 12
2.16 Taxes 14
2.17 Judgment Currency 15
2.18 London Interbank Market, Presumption 15
SECTION 3 CONDITIONS OF LENDING 15
3.01 Conditions Precedent to Closing 15
3.02 Conditions Precedent to Banks Making Term Loans 16
3.03 Interest Period Requests 17
SECTION 4 REPRESENTATIONS, WARRANTIES, COVENANTS;
INCORPORATION OF TERMS 17
4.01 Incorporation 17
4.02 Representations, Compliance 18
4.03 Amendments 18
4.04 Party to Syndicated Agreement 18
4.05 Notices 18
4.06 The Acquisition 18
4.07 Assignees 19
SECTION 5 DEFAULT 19
5.01 Events of Default 19
5.02 Consequences of Event of Default 20
151
SECTION 6 THE AGENT 21
6.01 Appointment 21
6.02 Delegation of Duties 21
6.03 Nature of Duties; Independent Credit
Investigation 21
6.04 Actions in Discretion of Agent; Instructions
from the Banks 21
6.05 Reimbursement and Indemnification of Agent
by the Borrower 22
6.06 Exculpatory Provisions 22
6.07 Reimbursement and Indemnification of Agent
by Banks 23
6.08 Reliance by Agent 23
6.09 Notice of Default 23
6.10 Notices 23
6.11 Banks in Their Individual Capacities 23
6.12 Holders of Notes 24
6.13 Equalization of Banks 24
6.14 Successor Agent 24
6.15 Availability of Funds 24
6.16 Calculations 25
6.17 Beneficiaries 25
SECTION 7 MISCELLANEOUS 25
7.01 Modifications, Amendments or Waivers 25
7.02 No Implied Waivers; Cumulative Remedies;
Writing Required 26
7.03 Reimbursement and Indemnification of Banks
by the Borrower; Taxes 26
7.04 Holidays 26
7.05 Funding by Branch, Subsidiary or Affiliate 27
7.06 Notices 27
7.07 Successors and Assigns; Participations;
Assignments 27
7.08 Confidentiality 30
7.09 Counterparts; Telecopy Signatures 30
7.10 Agent's or Bank's Consent 30
7.11 Exceptions 30
7.12 Tax Withholding Clause 30
7.13 Notification 31
7.14 Bank's Duties Upon Payment in Full by Borrower 31
7.15 Severability 32
7.16 Governing Law 32
7.17 Prior Understanding 32
7.18 Duration; Survival; Failure of Closing Date 32
7.19 Consent to Jurisdiction; Waiver of
Immunities; Waiver of Jury Trial 32
152