CONFORMED COPY
$450,000,000
CREDIT AGREEMENT
(364-Day)
dated as of
October 29, 1998
among
Armstrong World Industries, Inc.,
The Banks Listed Herein
and
The Chase Manhattan Bank,
as Administrative Agent
___________________________
Bank of America National Trust and Savings Association
Documentation Agent
Wachovia Bank, National Association
and Deutsche Bank AG New York Branch
Co-Documentation Agents
J.P. Morgan Securities Inc.
Syndication Agent
______________________________
Chase Securities Inc.
Lead Arranger and Book Manager
[6700-757]
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Credit Agreement dated as of October 29, 1998 among
Armstrong World Industries, Inc., the Banks listed on the
signature pages hereof and The Chase Manhattan Bank, as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"ADJUSTED LONDON INTERBANK OFFERED RATE" has the meaning set forth in
Section 2.05(c).
"ADMINISTRATIVE AGENT" means The Chase Manhattan Bank in its capacity
as administrative agent for the Banks hereunder, and its successors in such
capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"AGENT" means any of the Administrative Agent, either Documentation
Agent, Co-Documentation Agent or the Syndication Agent, and "Agents" means any
two or more of the foregoing.
"ALTERNATE CURRENCY" means, at any time, any Foreign Currency that is,
at the time any Commitment is extended or any Loan is made in such Foreign
Currency, freely tradeable and exchangeable into dollars in the London interbank
market.
"APPLICABLE LENDING OFFICE" means, with respect to any Bank, (i) in
the case of its Base Rate Loans, its Domestic Lending Office and (ii) in the
case of its Eurocurrency Loans, its Eurocurrency Lending Office.
"APPLICABLE PERCENTAGE" means, with respect to any Bank, the
percentage of the total Commitments represented by such Bank's Commitment.
"ASSIGNEE" has the meaning set forth in Section 9.06(c).
"BANK" means (i) each Person listed on the Commitment Schedule, (ii)
each Assignee which becomes a Bank pursuant to Section 9.06 and (iii) their
respective successors.
"BASE RATE" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"BASE RATE LOAN" means a Loan to be made by a Bank as a Base Rate Loan
in accordance with the applicable Notice of Borrowing or pursuant to Article 8.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
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"BORROWER" means Armstrong World Industries, Inc., a Pennsylvania
corporation, and its successors.
"BORROWER'S 1997 FORM 10-K" means the Borrower's annual report on Form
10-K for 1997, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
"BORROWER'S LATEST FORM 10-Q" means the Borrower's quarterly report on
Form 10-Q for the quarter ended June 30, 1998, as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934.
"BORROWING" has the meaning set forth in Section 1.03.
"BORROWING MINIMUM" means (a) in the case of a Borrowing denominated
in Dollars, $5,000,000 and (b) in the case of a Borrowing denominated in any
Foreign Currency, the smallest amount of such Foreign Currency that (i) is an
integral multiple of 5,000,000 units (or in the case of Sterling, 2,500,000
units) of such currency and (ii) has a U.S. Dollar Equivalent in excess of
$5,000,000.
"BORROWING MULTIPLE" means (a) in the case of a Borrowing denominated
in Dollars, $1,000,000 and (b) in the case of any Borrowing denominated in
Foreign Currency 1,000,000 units (or, in the case of Sterling, 500,000 units) of
such currency.
"CALCULATION DATE" means the last Eurocurrency Business Day of each
calendar month, or if a Default shall have occurred and be continuing, more
frequently at the option of the Administrative Agent or the Required Banks.
"CO-DOCUMENTATION AGENTS" means Deutsche Bank AG New York Branch and
Wachovia Bank in their capacity as co-documentation agents in respect of this
Agreement.
"COMMITMENT" means, with respect to each Bank listed in the Commitment
Schedule, the amount set forth opposite the name of such Bank in the Commitment
Schedule, and with respect to any Bank which becomes a party to this Agreement
pursuant to Section 9.06(c), the amount of the Commitment thereby assumed by
such Bank, in each case as such amount may from time to time be reduced pursuant
to Sections 2.07, 2.08 and 9.06(c) or increased pursuant to Sections 2.13 and
9.06(c).
"COMMITMENT SCHEDULE" means the Schedule attached hereto identified as
such.
"CONSOLIDATED NET WORTH" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries
determined as of such date; provided, that for purposes of determining
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compliance with Section 5.07, up to $100,000,000 in special charges subsequent
to the date hereof related to litigation shall be disregarded.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the
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deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of such Person
as lessee which are capitalized in accordance with generally accepted accounting
principles, (v) all non-contingent obligations (and, for purposes of Section
5.08 and the definitions of Material Debt and Material Financial Obligations,
all contingent obligations) of such Person to reimburse any bank or other Person
in respect of amounts paid under a letter of credit or similar instrument, (vi)
all Debt secured by a Lien on any asset of such Person, whether or not such Debt
is otherwise an obligation of such Person, and (vii) all Debt of others
Guaranteed by such Person.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DERIVATIVE OBLIGATIONS" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"DESIGNATED CURRENCY" means Pounds Sterling, Swedish Kronor, Canadian
Dollars, French Francs, German Marks, Swiss Francs, Spanish Peseta, Italian
Lire, Australian Dollars, Japanese Yen and Euros (after their adoption by
participating members of the European Union) and any other Alternate Currency
that shall be designated by the Borrower in a notice delivered to the
Administrative Agent and approved by the Administrative Agent and all the Banks
as a Designated Currency.
"DOCUMENTATION AGENT" means Bank of America National Trust and Savings
Association in its capacity as documentation agent in respect of this Agreement.
"DOLLARS" or "$" means such coin or currency of the United States of
America as at the time shall be legal tender for the payment of public and
private debts.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 3.01.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution,
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use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, Hazardous Substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EUROCURRENCY BORROWING" means a Borrowing comprised of Eurocurrency
Loans.
"EUROCURRENCY BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar and other Designated Currency deposits) in London.
"EUROCURRENCY LENDING OFFICE" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Eurocurrency Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Eurocurrency Lending Office by notice
to the Borrower and the Administrative Agent.
"EUROCURRENCY LOAN" means a Loan to be made by a Bank as a
Eurocurrency Loan in accordance with the applicable Notice of Borrowing.
"EUROCURRENCY MARGIN" has the meaning set forth in Section 2.05(b).
"EUROCURRENCY RESERVE PERCENTAGE" has the meaning set forth in Section
2.05(c).
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXCHANGE RATE" shall mean, on any day, with respect to any Foreign
Currency, the rate at which such Foreign Currency may be exchanged into U.S.
Dollars at 11:00 a.m., New York City Time, on such day as set forth on the
Reuters World Currency Page for such currency. In the event that such rate
cannot be determined pursuant to the preceding sentence, the Exchange Rate shall
be the arithmetic average of the spot rates of exchange of the Administrative
Agent in the market where its foreign currency exchange operations in respect of
such currency are then being conducted, at 11:00 a.m. New York City Time on such
date for the purchase of U.S. Dollars with the applicable currency for delivery
two Eurocurrency Business Days later; provided that if at the time of any such
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determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.
"EXISTING CREDIT AGREEMENT" means the Credit Agreement dated as of
July 17, 1998, among the Borrower, the financial institutions from time to time
party thereto and Morgan Guaranty Trust Company of New York, as administrative
agent.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on
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the Domestic Business Day next succeeding such day, provided that (i) if such
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day is not a Domestic Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if no such rate
is so published on such next succeeding Domestic Business Day, the Federal Funds
Rate for such day shall be the average rate quoted to The Chase Manhattan Bank
on such day on such transactions as determined by the Administrative Agent.
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of any corporation.
"FOREIGN CURRENCY" means a currency other than Dollars.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person, provided that the term Guarantee shall not include endorsements
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for collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS SUBSTANCE" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
"INSULATION BUSINESS" means the Borrower's insulation products
operations.
"INTEREST PERIOD" means: (a) with respect to each Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending one,
two, three or six months thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:
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(i) any Interest Period which would otherwise end on a day which is
not a Eurocurrency Business Day shall, subject to clause (iii) below, be
extended to the next succeeding Eurocurrency Business Day unless such
Eurocurrency Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Eurocurrency Business
Day;
(ii) any Interest Period which begins on the last Eurocurrency
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (iii) below, end on the last
Eurocurrency Business Day of a calendar month; and
(iii) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
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(b) with respect to each Base Rate Borrowing, the period commencing
on the date of such Borrowing or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as the case may be, and ending on
the earliest of:
(i) the next succeeding March 31, June 30, September 30 or December
31;
(ii) the Termination Date; and
(iii) the date such Borrowing is prepaid in accordance with Section
2.09 or required to be paid in accordance with Section 2.08.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"LOAN" means a Base Rate Loan or a Eurocurrency Loan and "LOANS" means
Base Rate Loans or Eurocurrency Loans or any combination of the foregoing.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.05(c).
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL DEBT" means Debt of the Borrower (other than the Loans)
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal or face amount exceeding
$20,000,000.
"MATERIAL FINANCIAL OBLIGATIONS" means a principal or face amount of
Debt and/or payment obligations in respect of Derivative Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, exceeding in the aggregate $20,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"MULTI-YEAR AGREEMENT" means the $450,000,000 Credit Agreement (five-
year) dated as of October 29, 1998 among the Borrower, the banks party thereto
and The Chase Manhattan Bank as administrative agent.
"NOTICE OF BORROWING" has the meaning set forth in Section 2.02.
"PARENT" means, with respect to any Bank, any Person controlling such
Bank.
"PARTICIPANT" has the meaning set forth in Section 9.06(b).
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"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"PLAN" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"POUNDS STERLING" or "(Pounds)" refers to lawful money of the United
Kingdom.
"PRICING SCHEDULE" means the Schedule attached hereto identified as
such.
"PRIME RATE" means the rate of interest publicly announced by The
Chase Manhattan Bank in New York City from time to time as its Prime Rate.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REQUIRED BANKS" means at any time Banks having at least 51% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding at least 51% of the aggregate unpaid principal amount of the
Loans (with Foreign Currency amounts being converted into U.S. Dollar amounts
for this purpose at the Exchange Rate for the applicable currency at such time).
"REVOLVING CREDIT PERIOD" means the period from and including the
Effective Date to but excluding the Termination Date.
"SENIOR EXECUTIVE OFFICER" means the Chairman of the Board, President
and Chief Executive Officer, the Senior Vice President and Chief Financial
Officer or the Senior Vice President, Secretary and General Counsel of the
Borrower.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary which satisfies the
criteria set forth in subparagraph (b) of the definition of "Significant
Subsidiary" in Rule 1-02 of Regulation S-X of the Securities and Exchange
Commission, as in effect on the date hereof.
"SUBSIDIARY" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person; unless
otherwise specified "Subsidiary" means a subsidiary of the Borrower.
"SYNDICATION AGENT" means J.P. Morgan Securities Inc., in its capacity
as syndication agent in respect of this Agreement.
"TERMINATION DATE" means October 28, 1999, or, if such day is not a
Eurocurrency Business Day, the next preceding Eurocurrency Business Day, as such
date may be extended pursuant to Section 2.07.
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"UNFUNDED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNITED STATES" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"U.S. DOLLAR EQUIVALENT" means (a) as to any amount denominated in
Dollars, the amount thereof, and (b) as to any amount denominated in a Foreign
Currency, the equivalent thereof in Dollars determined by the Administrative
Agent pursuant to Section 1.04 using the Exchange Rate with respect to such
currency at the time in effect.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks; provided that, if the Borrower notifies the Administrative Agent
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that the Borrower wishes to amend any covenant in Article 5 to eliminate the
effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Banks wish to amend Article 5 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks.
Section 1.03. Types of Borrowings. The term "BORROWING" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article 2 on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement by reference to the pricing of Loans
comprising such Borrowing (e.g., a "Eurocurrency Borrowing" is a Borrowing
comprised of Eurocurrency Loans).
Section 1.04. Exchange Rates. (a) Not later than 1:00 p.m., New
York City Time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date for each Designated
Currency and (ii) give notice thereof to the Banks and the Borrower. The
Exchange Rate so determined for each Designated Currency shall become effective
on the first Eurocurrency Business Day of the calendar month immediately
following the relevant Calculation Date (a "RESET DATE"), shall remain effective
until the next succeeding Reset Date and shall for all purposes of this
Agreement (except in connection with Section 8.02, Section 9.11 or any other
provision expressly requiring the use of a current Exchange Rate) be the
Exchange Rate employed in converting any amounts between U.S. Dollars and each
Designated Currency.
(b) No later than 5:00 p.m., New York City Time, on each Reset Date
and each date on which a Borrowing shall occur, the Administrative Agent shall
(i) determine the U.S.
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Dollar Equivalent of the aggregate principal amount of Loans then outstanding
(after giving effect to any Loans made, issued, repaid or canceled on such date)
and (ii) notify the Banks and the Borrowers of such amount.
ARTICLE 2
The Credits
Section 2.01. Commitments To Lend. (a) During the Revolving Credit
Period each Bank severally agrees, on the terms and conditions set forth in this
Agreement, to make loans in U.S. Dollars and/or one or more Designated
Currencies (at the option of the Borrower) to the Borrower pursuant to this
Section from time to time in amounts such that (i) the U.S. Dollar Equivalent of
the aggregate principal amount of Loans by such Bank at any one time outstanding
shall not exceed the amount of its Commitment and (ii) the aggregate U.S. Dollar
Equivalent of the outstanding Loans of all the Banks denominated in Foreign
Currencies shall not exceed $450,000,000. Each Borrowing under this Section
shall be in an aggregate principal amount that is a multiple of the Borrowing
Multiple and at least equal to the Borrowing Minimum (except that any such
Borrowing may be in the aggregate amount of the unused Commitments) and shall be
made from the several Banks ratably in proportion to their respective
Commitments. Within the foregoing limits, the Borrower may borrow under this
Section, repay, or to the extent permitted by Section 2.09, prepay Loans and
reborrow at any time during the Revolving Credit Period under this Section.
(b) Subject to Sections 8.01 and 8.02 (i) each Borrowing denominated
in U.S. Dollars shall be comprised entirely of Base Rate Loans or Eurocurrency
Loans as the Borrower may request pursuant to Section 2.02 and (ii) each
Borrowing denominated in a Designated Currency shall be comprised entirely of
Eurocurrency Loans.
Section 2.02. Procedure for Borrowing. (a) The Borrower shall give
the Administrative Agent notice (a "NOTICE OF BORROWING") not later than 10:30
a.m. New York City Time on (x) the date of each Base Rate Borrowing, (y) the
third Eurocurrency Business Day before each Eurocurrency Borrowing denominated
in Dollars and (z) the fourth Eurocurrency Business Day before each Eurocurrency
Borrowing denominated in a Designated Currency, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Base Rate Borrowing or a Eurocurrency Business Day in the
case of a Eurocurrency Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) the currency of such Borrowing, if applicable;
(iv) in the case of a Borrowing denominated in U.S. Dollars, whether
the Loans comprising such Borrowing are to be Base Rate Loans or
Eurocurrency Loans, and
(v) in the case of a Borrowing in a Designated Currency, the location
from which payment of the principal and interest on such Borrowing will be
made, which shall comply with the requirements of Section 2.10;
(vi) the number and location of the account to which funds are to be
disbursed; and
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(vii) in the case of a Eurocurrency Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) If no election as to the type of a U.S. Dollar Borrowing is
specified in any such notice, then the requested Borrowing shall be a Base Rate
Borrowing. If no election as to the currency of a Borrowing is specified in any
such notice, then the requested Borrowing shall be denominated in U.S. Dollars.
If no Interest Period with respect to any Eurocurrency Borrowing is specified in
any such notice then the Borrower shall be deemed to have selected an Interest
Period of one month's duration.
(c) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Bank of the contents thereof and of such Bank's share
of such Borrowing and such Notice of Borrowing shall not thereafter be revocable
by the Borrower.
(d) Not later than 12:00 noon New York City Time on the date of each
Borrowing, each Bank shall (except as provided in subsection (e) of this
Section) make available its share of such Borrowing in immediately available
funds as may then be customary for the settlement of transactions in the
relevant currency, to such account as the Administrative Agent shall specify.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent shall
promptly transfer the amounts so received to the account designated by the
Borrower in the applicable Notice of Borrowing.
(e) If any Bank makes a new Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Loan from such Bank, such
Bank shall apply the proceeds of its new Loan to make such repayment and only an
amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Bank to the
Administrative Agent as provided in subsection (d), or remitted by the Borrower
to the Administrative Agent as provided in Section 2.10, as the case may be.
(f) Unless the Administrative Agent shall have received notice from a
Bank prior to the time of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsections (d) and (e) of this Section and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so
made such share available to the Administrative Agent, such Bank and, if such
Bank fails to do so within three Domestic Business Days of demand therefor, the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable thereto pursuant to Section 2.05 and (ii) in the case
of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Loan included in such Borrowing for purposes of this
Agreement.
Section 2.03. Evidence of Debt. (a) Each Bank shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Bank resulting from each Loan made by such
Bank, including the amounts of principal and interest payable and paid to such
Bank from time to time hereunder.
11
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount and currency of each Loan made hereunder, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Bank hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the accounts of the Banks and
each Bank's share thereof.
(c) The entries made in the accounts maintained pursuant to paragraph
(a) or (b) of this Section shall be prima facie evidence of the existence and
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amounts of the obligations recorded therein; provided that the failure of any
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Bank or the Administrative Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement.
(d) Any Bank may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Bank a promissory note payable to the order of such Bank (or, if
requested by such Bank, to such Bank and its registered assigns) in a form
approved by the Borrower and the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.06) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
Section 2.04. Maturity of Loans. Each Loan included in any Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
Section 2.05. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of or interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise applicable to Base Rate
Loans for such day.
(b) Each Eurocurrency Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Eurocurrency Margin for
such day plus the Adjusted London Interbank Offered Rate applicable to such
Interest Period. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof.
"EUROCURRENCY MARGIN" means a rate per annum determined in accordance
with the Pricing Schedule.
The "ADJUSTED LONDON INTERBANK OFFERED RATE" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Eurocurrency
Reserve Percentage.
"LONDON INTERBANK OFFERED RATE" shall mean, with respect to any
Eurocurrency Borrowing, the rate per annum determined by the Administrative
Agent at approximately 11:00 a.m. (London time) on the date which is two
Quotation Days prior to the beginning of the relevant Interest Period (as
specified in the applicable Notice of Borrowing) by reference to the British
Bankers' Association Interest Settlement Rates for deposits in the
12
currency of such Borrowing (as reflected on the applicable Telerate screen), for
a period equal to such Interest Period; provided that, to the extent that an
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interest rate is not ascertainable pursuant to the foregoing provisions of this
definition, the "LONDON INTERBANK OFFERED RATE" shall be the interest rate per
annum determined by the Administrative Agent to be the average of the rates per
annum at which deposits in the currency of such Borrowing offered for such
relevant Interest Period to major banks in the London interbank market in
London, England, by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date which is two Eurocurrency Business Days prior to the beginning
of such Interest Period.
"QUOTATION DAY" shall mean, with respect to any currency, each day on
which rate quotations in such currency are available through the British
Bankers' Association.
"EUROCURRENCY RESERVE PERCENTAGE" means, with respect to any currency,
a fraction (expressed as a decimal), the numerator of which is the number one
and the denominator of which is the number one minus the aggregate of the
maximum reserve, liquid asset or similar percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by any Governmental Authority of the jurisdiction of such currency to which
banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to
which interest rates applicable to Loans in such currency are determined.
Eurocurrency Loans shall be deemed to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Bank under Regulation D or any other
applicable law, rule or regulation. The Eurocurrency Reserve Percentage shall
be adjusted automatically on and as of the effective date of any change in any
reserve percentage.
(d) Any overdue principal of or interest on any Eurocurrency Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the higher of (i) the sum of 2% plus the Eurocurrency Margin for
such day plus the Adjusted London Interbank Offered Rate applicable to the
Interest Period for such Loan and (ii) the sum of 2% plus the Eurocurrency
Margin for such day plus the quotient obtained (rounded upward, if necessary, to
the next higher 1/100 of 1%) by dividing (x) the average (rounded to the nearest
1/16 of 1%) of the respective rates per annum at which one day (or, if such
amount due remains unpaid more than three Eurocurrency Business Days, then for
such other period of time not longer than six months as the Administrative Agent
may select) deposits in the currency of such Loan in an amount approximately
equal to such Loan are offered to the Administrative Agent in the London
interbank market for the applicable period determined as provided above by (y)
1.00 minus the Eurocurrency Reserve Percentage (or, if the circumstances
described in Section 8.01 shall exist, (i) in the case of a Loan denominated in
Dollars, at a rate per annum equal to the sum of 2% plus the rate applicable to
Base Rate Loans for such day) and (ii) in the case of a Loan denominated in
Foreign Currency, at a rate per annum equal to the sum of 2% plus the
Eurocurrency Margin plus the rate determined by the Administrative Agent from
time to time to represent the cost of overnight or short-term funds in the
applicable currency.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the Banks of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest error.
Section 2.06. Facility Fees. (a) The Borrower shall pay to the
Administrative Agent for the account of the Banks ratably a facility fee at the
Facility Fee Rate (determined daily in accordance with the Pricing Schedule).
Such facility fee shall accrue (i) from and including the date of this Agreement
to but excluding the Termination Date (or earlier date of termination of the
Commitments in their entirety), on the daily aggregate amount of the
13
Commitments (whether used or unused) and (ii) from and including the Termination
Date or such earlier date of termination to but excluding the date the Loans
shall be repaid in their entirety, on the daily aggregate outstanding principal
amount of the Loans. Accrued fees under this Section shall be payable quarterly
on the last day of each March, June, September and December and upon the date of
termination of the Commitments in their entirety (and, if later, the date the
Loans shall be repaid in their entirety).
(b) On the date of this Agreement, the Borrower shall pay to the
Administrative Agent for the account of each Bank an upfront fee in the amount
heretofore mutually agreed.
Section 2.07. Optional Termination or Reduction of Commitments;
Extension of Commitments. (a) During the Revolving Credit Period, the Borrower
may, upon at least three Domestic Business Days' notice to the Administrative
Agent, (i) terminate the Commitments at any time, if no Loans are outstanding at
such time or (ii) ratably reduce from time to time by an aggregate amount of
$25,000,000 or any larger multiple of $5,000,000, the aggregate amount of the
Commitments in excess of the aggregate U.S. Dollar Equivalent of the outstanding
principal amount of the Loans.
(b) The Borrower may, by notice to the Administrative Agent in a form
approved by the Administrative Agent (which shall promptly deliver a copy to
each of the Banks) not less than 45 days and not more than 60 days prior to the
Termination Date at any time in effect (the "EXISTING TERMINATION DATE"),
request that the Banks extend the Termination Date for an additional 364 days
from the Existing Termination Date. Each Bank shall, by notice to the Borrower
and the Administrative Agent given not more than 40 and not fewer than 29 days
prior to the Existing Termination Date, advise the Borrower whether or not such
Bank agrees to such extension (and any Bank that does not advise the Borrower on
or before the later of such days shall be deemed to have advised the Borrower
that it will not agree to such extension).
The Borrower shall have the right, on or before the Existing
Termination Date, to require any Bank which shall have advised or been deemed to
advise the Borrower that it will not agree to an extension of the Termination
Date (each a "NON-EXTENDING BANK") to transfer without recourse (in accordance
with and subject to the restrictions contained in Section 9.06) all its
interests, rights and obligations under this Agreement to one or more other
banks or other financial institutions (any such bank or other financial
institution being called a "SUBSTITUTE BANK"), which may include any Bank;
provided that (i) such Substitute Bank, if not already a Bank hereunder, shall
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have been approved by the Administrative Agent (which approval shall not be
unreasonably withheld) and shall execute all such documentation as the
Administrative Agent shall specify to evidence its status as a Bank hereunder,
(ii) such assignment shall become effective as of the Existing Termination Date
and (iii) the Borrower or such Substitute Bank shall pay to such Non-Extending
Bank in immediately available funds on the effective date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by it
hereunder and all other amounts accrued for its account or owed to it hereunder.
If (and only if) Banks (including Substitute Banks) holding
Commitments that represent at least 60% of the Total Commitment on the 45th day
prior to the Existing Termination Date shall have agreed, on or before the
Existing Termination Date, to extend the Existing Termination Date (the
"CONTINUING BANKS"), then the Termination Date shall be extended to the date 364
days after the Existing Termination Date (provided, that if such date is not a
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Eurocurrency Business Day, then the Termination Date shall be extended to the
next
14
preceding Eurocurrency Business Day). The decision to agree or withhold
agreement to any extension of the Termination Date hereunder shall be at the
sole discretion of each Bank. The Commitment of each Non-Extending Bank (after
giving effect to each transfer and assignment pursuant to this paragraph (b))
shall terminate, and all Loans of such Non-Extending Bank shall become due and
payable, together with all interest accrued thereon and all other amounts owed
to such Bank hereunder, on the Existing Termination Date.
Notwithstanding the foregoing, no extension of the Termination Date
shall be effective with respect to any Bank unless, on and as of the Existing
Termination Date, the conditions set forth in paragraphs (b) and (c) of Section
3.02 shall be satisfied and the Administrative Agent shall have received a
certificate to that effect, dated the Existing Termination Date and executed by
a Senior Executive Officer of the Borrower.
Section 2.08. Mandatory Termination and Reduction of Commitments.
The Commitments shall terminate on the Termination Date, and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable on
such date.
Section 2.09. Optional Payments. (a) Subject in the case of any
Eurocurrency Borrowing to Section 2.11, the Borrower may, upon at least one
Domestic Business Day's notice to the Administrative Agent, prepay any Base Rate
Borrowing, or upon at least three Eurocurrency Business Days' notice to the
Administrative Agent, prepay any Eurocurrency Borrowing, in each case in whole
at any time, or from time to time in part in amounts that are multiples of the
Borrowing Multiple and at least equal to the Borrowing Minimum by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such Borrowing.
(b) Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
Section 2.10. General Provisions as to Payments. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of fees
hereunder, without setoff, counterclaim or other deduction, not later than 12:00
Noon New York City Time on the date when due, in U.S. Dollars or the applicable
Designated Currency, as the case may be, in immediately available funds to such
account as the Administrative Agent shall specify. All payments due under this
Agreement other than the payments of the principal of and interest on Loans
denominated in Foreign Currencies shall be made in U.S. Dollars. The
Administrative Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Administrative Agent for the account of the
Banks. Whenever any payment of principal of, or interest on, Base Rate Loans or
of fees shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business Day.
Whenever any payment of principal of, or interest on, the Eurocurrency Loans
shall be due on a day which is not a Eurocurrency Business Day, the date for
payment thereof shall be extended to the next succeeding Eurocurrency Business
Day unless such Eurocurrency Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Eurocurrency
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
15
(b) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent
that the Borrower shall not have so made such payment, each Bank shall repay to
the Administrative Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
Section 2.11. Funding Losses. If (i) the Borrower makes any payment
of principal with respect to any Eurocurrency Loan (pursuant to Article 2, 6, or
8 or otherwise), (ii) any Non-Increasing Bank receives a payment of principal
pursuant to Section 2.13(b) or (iii) any Non-Extending Bank receives a payment
of principal pursuant to Section 2.07(b) on any day other than the last day of
the Interest Period applicable thereto, or the last day of an applicable period
fixed pursuant to Section 2.05(d), or if the Borrower fails to borrow or prepay
any Eurocurrency Loan after notice has been given to any Bank in accordance with
Section 2.02(c) or 2.09(b), the Borrower shall reimburse each Bank within 15
days after demand for any resulting loss or reasonable expense incurred by it
(or by an existing Participant in the related Loan), including (without
limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin, for the period after any such
payment or failure to borrow or prepay, provided that such Bank shall have
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delivered to the Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
Section 2.12. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). Interest based on the
Federal Funds Rate or the Adjusted London Interbank Offered Rate shall be
computed on the basis of a year of 360 days, and paid for the actual number of
days elapsed (including the first day but excluding the last day). Fees shall
be computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
Section 2.13. Increase in Commitments. (a) The Borrower may, by
written notice to the Administrative Agent (which shall promptly deliver a copy
to each of the Banks), request that the total Commitments be increased by an
amount not less than $25,000,000 for any such increase and not greater than
$250,000,000 minus the aggregate amount of prior or simultaneous increases of
the Commitments under this Agreement and the Multi-Year Agreement. Such notice
shall set forth the amount of the requested increase in the total Commitments
and the date on which such increase is requested to become effective (which
shall be not less than 45 days or more than 60 days after the date of such
notice), and shall offer each Bank the opportunity to increase its Commitment by
its Applicable Percentage of the proposed increased amount. Each Bank shall, by
notice to the Borrower and the Administrative Agent given not more than 20 days
after the date of the Borrower's notice, either agree to increase its Commitment
by all or a portion of the offered amount (each Bank so agreeing being an
"INCREASING BANK") or decline to increase its Commitment (and any Bank that does
not deliver such a notice within such period of 20 days shall be deemed to have
declined to increase its Commitment) (each Bank so declining or deemed to have
declined being a "NON-INCREASING BANK"). In the event that, on the 20th day
after the Borrower shall have
16
delivered a notice pursuant to the first sentence of this paragraph, the Banks
shall have agreed pursuant to the preceding sentence to increase their
Commitments by an aggregate amount less than the increase in the total
Commitments requested by the Borrower, the Borrower may arrange for one or more
banks or other financial institutions (any such bank or other financial
institution referred to in this paragraph (a) being called an "AUGMENTING
BANK"), which may include any Bank, to extend Commitments or increase its
existing Commitments in an aggregate amount equal to the unsubscribed amount;
provided that each Augmenting Bank, if not already a Bank hereunder, shall be
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subject to the approval of the Administrative Agent (which approval shall not be
unreasonably withheld) and each Augmenting Bank shall execute all such
documentation as the Administrative Agent shall specify to evidence its
Commitment and its status as a Bank hereunder. Increases and new Commitments
created pursuant to this paragraph (a) shall become effective on the date
specified in the notice delivered by the Borrower pursuant to the first sentence
of this paragraph. Notwithstanding the foregoing, no increase in the total
Commitments (or in the Commitment of any Bank) shall become effective under this
paragraph unless, (i) on the date of such increase, the conditions set forth in
paragraphs (b) and (c) of Section 3.02 shall be satisfied and the Administrative
Agent shall have received a certificate to that effect dated such date and
executed by a Financial Officer of the Borrower, and (ii) the Administrative
Agent shall have received (with sufficient copies for each of the Banks)
documents consistent with those delivered under clauses (b) and (c) of Section
3.01 as to the corporate power and authority of the Borrower to borrow hereunder
and as to the enforceability of this Agreement after giving effect to such
increase.
(b) On the effective date (the "INCREASE EFFECTIVE DATE") of any
increase in the total Commitments pursuant to paragraph (a) above (the
"COMMITMENT INCREASE"), (i) the aggregate principal amount of the Loans
outstanding (the "INITIAL LOANS") immediately prior to giving effect to the
Commitment Increase on the Increase Effective Date shall be deemed to be paid,
(ii) each Increasing Bank and each Augmenting Bank that shall have been a Bank
prior to the Commitment Increase shall pay to the Administrative Agent in same
day funds an amount equal to the difference between (A) the product of (1) such
Bank's Applicable Percentage (calculated after giving effect to the Commitment
Increase) multiplied by (2) the amount of the Subsequent Borrowings (as
hereinafter defined) and (B) the product of (1) such Bank's Applicable
Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Bank
that shall not have been a Bank prior to the Commitment Increase shall pay to
Administrative Agent in same day funds an amount equal to the product of (1)
such Augmenting Bank's Applicable Percentage (calculated after giving effect to
the Commitment Increase) multiplied by (2) the amount of the Subsequent
Borrowings, (iv) after the Administrative Agent receives the funds specified in
clauses (ii) and (iii) above, the Administrative Agent shall pay to each Non-
Increasing Bank the portion of such funds that is equal to the difference
between (A) the product of (1) such Non-Increasing Bank's Applicable Percentage
(calculated without giving effect to the Commitment Increase) multiplied by (2)
the amount of the Initial Loans, and (B) the product of (1) such Non-Increasing
Bank's Applicable Percentage (calculated after giving effect to the Commitment
Increase) multiplied by (2) the amount of the Subsequent Borrowings (v) after
the effectiveness of the Commitment Increase, the Borrower shall be deemed to
have made new Borrowings (the "SUBSEQUENT BORROWINGS") in an aggregate principal
amount equal to the aggregate principal amount of the Initial Loans in the
currency or currencies, and of the types and for the Interest Periods specified
in a Notice of Borrowing delivered to the Administrative Agent in accordance
with Section 2.02, (vi) each Non-Increasing Bank, each Increasing Bank and each
Augmenting Bank shall be deemed to hold its Applicable Percentage of each
Subsequent Borrowing (calculated after giving effect to the Commitment Increase)
and
17
(vii) the Borrower shall pay each Increasing Bank and each Non-Increasing
Bank any and all accrued but unpaid interest on the Initial Loans.
ARTICLE 3
Conditions
Section 3.01. Effectiveness. This Agreement shall become effective
on the date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 9.05):
(a) receipt by the Administrative Agent of counterparts hereof signed
by each of the parties hereto (or, in the case of any party as to which an
executed counterpart shall not have been received, receipt by the Administrative
Agent in form satisfactory to it of telegraphic, telex or other written
confirmation from such party of execution of a counterpart hereof by such
party);
(b) receipt by the Administrative Agent of an opinion of David D.
Wilson, Assistant Secretary and Associate General Counsel of the Borrower,
substantially in the form of Exhibit A hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required Banks
may reasonably request;
(c) receipt by the Administrative Agent of all documents the
Administrative Agent may reasonably request relating to the existence of the
Borrower, the corporate authority for and the validity of this Agreement, and
any other matters relevant hereto, all in form and substance satisfactory to the
Administrative Agent; and
(d) receipt by the Administrative Agent of a certificate of a
Financial Officer of the Borrower certifying as to (i) the termination of the
Existing Credit Agreement, and (ii) the payment in full of all obligations of
the Borrower outstanding under the Existing Credit Agreement.
The Administrative Agent shall promptly notify the Borrower and the Banks of
the Effective Date, and such notice shall be conclusive and binding on all
parties hereto.
Section 3.02. Borrowings. The obligation of any Bank to make a Loan
on the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02;
(b) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(c) the fact that the representations and warranties of the Borrower
contained in this Agreement (except (i) the representation and warranty set
forth in Section 4.04(c) and (ii) the representations and warranties set
forth in Sections 4.05 and 4.06 as to any matter which has theretofore been
disclosed in writing by the Borrower to the Banks or in reports filed with
the Securities and Exchange Commission, copies of which reports have been
delivered to the Banks) shall be true on and as of the date of such
Borrowing.
18
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts specified
in clauses (b) and (c) of this Section.
ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of Pennsylvania, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
Section 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement is within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the articles of incorporation or by-laws of the Borrower or of any material
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Subsidiaries or result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
Section 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower, enforceable in accordance with its terms and
each note, when executed and delivered in accordance with this Agreement, will
constitute a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms.
Section 4.04. Financial Information. (a) The consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of December 31, 1997
and the related consolidated statements of earnings and cash flows for the
fiscal year then ended, reported on by independent public accountants and set
forth in the Borrower's 1997 Form 10-K, a copy of which has been delivered to
each of the Banks, fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of June 30, 1998 and the related unaudited
consolidated statements of earnings and cash flows for the six months then
ended, set forth in the Borrower's latest Form 10-Q, a copy of which has been
delivered to each of the Banks, fairly present, in conformity with generally
accepted accounting principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such three
month period (subject to normal year-end adjustments).
(c) Since June 30, 1998 there has been no material adverse change in
the business, financial position, operations or prospects of the Borrower and
its Consolidated Subsidiaries, considered as a whole.
19
Section 4.05. Litigation. Except as disclosed in the Borrower's 1997
Form 10-K, in the Borrower's Latest Form 10-Q or as may hereafter be disclosed
in writing by the Borrower to the Banks or in reports filed with the Securities
and Exchange Commission, there is no action, suit or proceeding pending against,
or to the knowledge of the Borrower threatened against or affecting, the
Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility
of an adverse decision which could materially adversely affect the business,
financial position, operations or prospects of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or the ability of the Borrower to perform
its obligations under this Agreement. There is no action, suit or proceeding
pending against, or the knowledge of the Borrower threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official which in any manner
draws into question the validity of this Agreement.
Section 4.06. Environmental Matters. In the ordinary course of its
business, the Borrower reviews the effect of Environmental Laws on the business,
operations and properties of the Borrower and its Subsidiaries, in the course of
which it identifies and evaluates associated liabilities and costs. On the
basis of this review, the Borrower has reasonably concluded that, to the best of
its knowledge, except as disclosed in reports filed with the Securities and
Exchange Commission, copies of which reports have been delivered to the Banks,
such associated liabilities and costs, including the costs of compliance with
Environmental Laws, are unlikely to have a material adverse effect on the
business, financial condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
Section 4.07. Taxes. The Borrower and its Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
Section 4.08. Significant Subsidiaries. Each of the Borrower's
Significant Subsidiaries is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation, and
has all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
Section 4.09. Not an Investment Company. The Borrower is not an
"Investment Company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.10. Full Disclosure. All information heretofore furnished
by the Borrower to the Administrative Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Administrative
Agent or any Bank will be, true and accurate in all material respects on the
date as of which such information is stated or certified. The Borrower has
disclosed to the Banks in writing or in reports filed with the Securities and
Exchange Commission, copies of which reports have been delivered to the Banks,
any and all facts which materially and adversely affect or may affect (to the
extent the Borrower can now reasonably foresee) the business, operations or
financial condition of the Borrower and its Consolidated Subsidiaries, taken as
a whole, or the ability of the Borrower to perform its obligations under this
Agreement.
20
ARTICLE 5
Covenants
The Borrower agrees that, so long as any Bank has any Commitment
hereunder and so long as any Loan is outstanding hereunder:
Section 5.01. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of such fiscal
year and the related consolidated statements of income and cash flows for
such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on in a manner
acceptable to the Securities and Exchange Commission by independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of income and cash flows for such quarter and for the portion of
the Borrower's fiscal year ended at the end of such quarter, setting forth
in the case of such statements of income and cash flows in comparative form
the figures for the corresponding quarter and the corresponding portion of
the Borrower's previous fiscal year, all certified (subject to normal year-
end adjustments) as to fairness of presentation, generally accepted
accounting principles and consistency by the chief financial officer or the
chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
5.07 and 5.08 on the date of such financial statements and (ii) stating
whether any Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(d) within five days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a certificate
of the chief financial officer or the chief accounting officer of the
Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) which the Borrower shall have filed with the Securities
and Exchange Commission;
(g) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "Reportable Event" (as defined in Section
4043 of ERISA) with respect to any Plan which might constitute grounds for
a termination of such Plan
21
under Title IV of ERISA, or knows that the plan administrator of any Plan
has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given
to the PBGC; (ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA or notice that any Multiemployer Plan is
in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to administer
any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code, a copy of
such application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or in respect of
any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien
or the posting of a bond or other security, a certificate of the chief
financial officer or the chief accounting officer of the Borrower setting
forth details as to such occurrence and action, if any, which the Borrower
or applicable member of the ERISA Group is required or proposes to take;
and
(h) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent, at the request of any Bank, may reasonably request.
Section 5.02. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Significant Subsidiary to pay and discharge, at
or before maturity, all their respective material obligations and liabilities,
including, without limitation, tax liabilities, except where the same may be
contested in good faith by appropriate proceedings, and will maintain, and will
cause each Significant Subsidiary to maintain, in accordance with generally
accepted accounting principles, appropriate reserves for the accrual of any of
the same. Obligations and liabilities in an aggregate amount equal to or less
than $20,000,000 will not be deemed "Material" for purposes of this Section
5.02.
Section 5.03. Maintenance of Property; Insurance. (a) The Borrower
will keep, and will cause each Significant Subsidiary to keep, all property
material to its business in good working order and condition, ordinary wear and
tear excepted.
(b) The Borrower and its Significant Subsidiaries will maintain
insurance with sound and reputable insurers against at least such risks (and in
at least such amounts, subject to such risk retentions) as are usually insured
against in the same geographic area by companies of established repute engaged
in the same or a similar business.
Section 5.04. Conduct of Business and Maintenance. The Borrower will
preserve, renew and keep in full force and effect, and will cause each
Significant Subsidiary to preserve, renew and keep in full force and effect
their respective corporate existence and their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business; provided
--------
that nothing in this Section 5.04 shall prohibit (i) the merger of a Subsidiary
into the Borrower or the merger or consolidation of a Subsidiary with or into
another Person if the corporation surviving such consolidation or merger is a
Subsidiary and if, in each case, after giving effect thereto, no Default shall
have occurred and be continuing or (ii) the termination of the corporate
existence of any Subsidiary if the Borrower in good faith determines that such
22
termination is in the best interest of the Borrower and is not materially
disadvantageous to the Banks.
Section 5.05. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder) except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings and with respect
to which adequate reserves have been established in accordance with generally
accepted accounting principles.
Section 5.06. Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives of any Bank at
such Bank's expense to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at such reasonable
times and as often as may reasonably be desired.
Section 5.07. Minimum Consolidated Net Worth. Consolidated Net Worth
will at no time be less than $650,000,000.
Section 5.08. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal or face
amount not exceeding $50,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within
--------
180 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Borrower or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is
--------
not secured by any additional assets;
(g) Liens arising in the ordinary course of its business which (i) do
not secure Debt or Derivatives Obligations, (ii) do not secure any
obligation in an amount exceeding $25,000,000 and (iii) do not in the
aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business;
23
(h) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
--------
equivalents subject to such Liens may at no time exceed $25,000,000;
(i) Liens on Margin Stock, if and to the extent that the value of such
Margin Stock exceeds 25% of the total assets of the Borrower and its
Subsidiaries subject to this Section; and
(j) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal or face amount at any date
not to exceed 10% of Consolidated Net Worth.
Section 5.09. Consolidations, Mergers and Sales of Assets. The
Borrower will not (i) consolidate or merge with or into any other Person unless
the Borrower is the surviving corporation or (ii) sell, lease or otherwise
transfer, directly or indirectly, in a single transaction or a series of related
transactions all or any substantial part of the assets of the Borrower and its
Subsidiaries, taken as a whole, to any other Person; provided that (i) nothing
--------
in this Section shall restrict the sale of Margin Stock for cash consideration
in an amount not less than the fair market value thereof to the extent the value
of such Margin Stock exceeds 25% of the total assets of the Borrower and its
Subsidiaries subject to this Section and (ii) a sale of the Borrower's
Insulation Business shall not be deemed a sale of a substantial part of the
assets of the Borrower and its Subsidiaries. For purposes of this Section, a
substantial part of the assets of the Borrower and its Subsidiaries, taken as a
whole, shall mean 20% or more of the consolidated assets of the Borrower and its
Consolidated Subsidiaries.
Section 5.10. Use of Proceeds. The proceeds of the Loans made under
this Agreement will be used by the Borrower for its general corporate purposes.
None of such proceeds will be used in violation of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
ARTICLE 6
Defaults
Section 6.01. Events of Default. If one or more of the following
events ("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan
or shall fail to pay within three days of the due date thereof any interest
on any Loan, any fees or any other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.10, inclusive;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after notice thereof has been given to the
Borrower by the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by
the Borrower in this Agreement or in any certificate, financial statement
or other document delivered pursuant to this Agreement shall prove to have
been incorrect in any material respect when made (or deemed made);
24
(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of any Material Financial Obligations when due or within any
applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of such
Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(g) the Borrower or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against
the Borrower or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be entered
against the Borrower or any Significant Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) (A) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall have
become liable to pay under Title IV of ERISA; (B) notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; (C) the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer any Material Plan; (D) a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or (E) there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans and
such events listed in clauses (A) through (E) could cause one or more
members of the ERISA Group to incur a current payment obligation in excess
of $20,000,000;
(j) judgments or orders for the payment of money in excess of
$20,000,000 in the aggregate shall be rendered against the Borrower or any
Subsidiary and such judgments or orders shall continue unsatisfied and
unstayed for a period of 30 days; or
(k)(i) any Person becomes the beneficial owner of 28% or more of the
then outstanding Voting Stock of the Borrower and within five years
thereafter Disinterested Directors no longer constitute at least a majority
of the Board of Directors of the Borrower or (ii) a Business Combination
with an Interested Shareholder occurs which has not been approved by a
majority of Disinterested Directors. (For purposes of this subsection, the
terms Person, beneficial owner, Voting Stock, Disinterested Director,
25
Business Combination, and Interested Shareholder are defined in the
Borrower's Articles of Incorporation as in effect as of the date hereof);
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 51% in aggregate amount of the Commitments, by
notice to the Borrower terminate the Commitments and they shall thereupon
terminate, and (ii) if requested by Banks with Loans of more than 51% in
aggregate principal amount of the Loans, by notice to the Borrower declare the
Loans (together with accrued interest thereon) to be, and the Loans shall
thereupon become, immediately due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower; provided that in the case of any of the Events of
--------
Default specified in clause (g) or (h) above with respect to the Borrower,
without any notice to the Borrower or any other act by the Administrative
Agent or the Banks, the Commitments shall thereupon terminate and the Loans
(together with accrued interest thereon) shall become immediately due and
payable without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower.
Section 6.02. Notice of Default. The Administrative Agent shall give
notice to the Borrower under Section 6.01(c) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
Section 7.02. Administrative Agent and Affiliates. The Chase
Manhattan Bank of New York shall have the same rights and powers under this
Agreement as any other Bank and may exercise or refrain from exercising the same
as though it were not the Administrative Agent, and The Chase Manhattan Bank and
its affiliates may accept deposits from, lend money to, and generally engage in
any kind of business with the Borrower or any Subsidiary or affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
Section 7.03. Action by Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Default, except as
expressly provided in Article 6.
Section 7.04. Consultation with Experts. The Administrative Agent
may consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
Section 7.05. Liability of Administrative Agent. Neither the
Administrative Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent
26
or at the request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Administrative Agent nor any of
its affiliates nor any of their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction of
any condition specified in Article 3, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of this Agreement or any other instrument or writing furnished in
connection herewith. The Administrative Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, statement, or other
writing (which may be a bank wire, telex, facsimile transmission or similar
writing) believed by it to be genuine or to be signed by the proper party or
parties.
Section 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Administrative Agent, its
affiliates and their respective directors, officers, agents and employees (to
the extent not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon any Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 7.08. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving notice thereof to the Banks and the
Borrower. Upon any such resignation, the Borrower shall have the right to
appoint a successor Administrative Agent, subject to the approval of the
Required Banks. If no successor Administrative Agent shall have been so
appointed and approved, and shall have accepted such appointment, within 45 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be a commercial bank organized or licensed
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent.
Section 7.09. Agents' Fees. The Borrower shall pay to each Agent for
its own account fees in the amounts and at the times previously agreed upon
between the Borrower and such Agent.
27
Section 7.10. Other Agents. Nothing in this Agreement shall impose
any duty or liability whatsoever on the Documentation Agent, Co-Documentation
Agents or the Syndication Agent in such capacity.
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate. If on
or prior to the first day of any Interest Period for any Eurocurrency Borrowing,
the Administrative Agent is advised by the Required Banks that deposits in
Dollars (in the applicable amounts) are not being offered to the Required Banks
in the relevant market for such Interest Period, the Administrative Agent shall
forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Administrative Agent notifies the Borrower that the circumstances giving rise to
such suspension no longer exist, the obligations of the Banks to make
Eurocurrency Loans shall be suspended. Unless the Borrower notifies the
Administrative Agent at least two Domestic Business Days before the date of any
Eurocurrency Borrowing for which a Notice of Borrowing has previously been given
that it elects not to borrow such Borrowing on such date, such Borrowing shall
instead be made as a Base Rate Borrowing.
Section 8.02. Illegality. If, on or after the date of this
Agreement, the adoption of any applicable law, rule or regulation, or any change
in any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or its Eurocurrency Lending Office) with any formal
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for any Bank (or its Eurocurrency Lending Office) to make, maintain
or fund its Dollar-Denominated Eurocurrency Loans or Eurocurrency Loans
denominated in a Designated Currency, as the case may be, and such Bank shall so
notify the Administrative Agent, the Administrative Agent shall forthwith give
notice thereof to the other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Bank to make
Dollar-denominated Eurocurrency Loans or Eurocurrency Loans denominated in a
Designated Currency shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section, such Bank shall designate a
different Eurocurrency Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Dollar-denominated
Eurocurrency Loans or Eurocurrency Loans denominated in a Designated Currency to
maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each such Eurocurrency
Loan, together with accrued interest thereon. Concurrently with prepaying each
such Eurocurrency Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount (or, in the case of a Eurocurrency Loan in a Designated
Currency, a Dollar amount equal to such amount based on the current Exchange
Rate) from such Bank (on which interest and principal shall be payable
contemporaneously with the related Eurocurrency Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
28
Section 8.03. Increased Cost and Reduced Return. (a) If on or after
the date hereof, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any
formal request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
with respect to any Eurocurrency Loan any such requirement included in an
applicable Eurocurrency Reserve Percentage), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Applicable Lending Office)
or shall impose on any Bank (or its Applicable Lending Office) or on the London
interbank market any other condition affecting its Eurocurrency Loans or its
obligation to make Eurocurrency Loans and the result of any of the foregoing is
to increase the cost to such Bank (or its Applicable Lending Office) of making
or maintaining any Eurocurrency Loan, or to reduce the amount of any sum
received or receivable by such Bank (or its Applicable Lending Office) under
this Agreement by an amount deemed by such Bank to be material, then, within 15
days after demand by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any formal request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency (including any determination by any such authority, central
bank or comparable agency that, for purposes of capital adequacy requirements,
the Commitments hereunder do not constitute commitments with an original
maturity of one year or less), has or would have the effect of reducing the rate
of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. A certificate of any Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount,
such Bank may use any reasonable averaging and attribution methods.
Section 8.04. (a) Taxes. For purposes of this Section 8.04, the
following terms have the following meanings:
29
"TAXES" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by
the Borrower pursuant to this Agreement and all liabilities with respect
thereto, excluding (i) in the case of each Bank and the Administrative
Agent, taxes imposed on its income, and franchise or similar taxes imposed
on it, by a jurisdiction under the laws of which such Bank or the
Administrative Agent (as the case may be) is organized or in which its
principal executive office is located or, in the case of each Bank, in
which its Applicable Lending Office is located and (ii) in the case of each
Bank, any United States withholding tax imposed on such payments but only
to the extent that such Bank is subject to United States withholding tax at
the time such Bank first becomes a party to this Agreement.
"OTHER TAXES" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or from the
execution or delivery of, or otherwise with respect to, this Agreement.
(b) Any and all payments by the Borrower to or for the account of any
Bank or the Administrative Agent hereunder shall be made without deduction for
any Taxes or Other Taxes; provided that, if the Borrower shall be required by
--------
law to deduct any Taxes or Other Taxes from any such payments, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 8.04) such Bank or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Administrative Agent, at its address referred to in Section 9.01,
the original or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 8.04) paid by such Bank or the Administrative
Agent (as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be paid within 15 days after such Bank or the Administrative Agent (as the case
may be) makes demand therefor.
(d) (i) With respect to any payment by the Borrower (or a Subsidiary)
from the United States, each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Bank listed on the signature pages hereof
and on or prior to the date on which it becomes a Bank in the case of each other
Bank, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Bank remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service Form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Bank is entitled to benefits under an income tax treaty to which the United
States is a party which exempts the Bank from United States withholding tax or
reduces the rate of withholding tax on payments of interest for the account of
such Bank or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States; provided that such Bank shall not be required to deliver any form
--------
pursuant to this Section 8.05(d)(i) that such Bank is not legally able to
deliver.
30
(ii) With respect to any payment by the Borrower (or a Subsidiary)
from a jurisdiction other than the United States, each Bank organized under the
laws of a jurisdiction other than the jurisdiction from which payment is made
("RELEVANT JURISDICTION") that is entitled to an exemption from or reduction of
withholding tax under the law of the Relevant Jurisdiction, or any treaty to
which such Relevant Jurisdiction is a party, with respect to payments under this
Agreement shall, after having received written notice from the Borrower (or the
applicable Subsidiary) advising it of the availability of such exemption or
reduction and containing all relevant documentation, deliver to the Borrower (or
the applicable Subsidiary), with a copy to the Administrative Agent, at the time
or times prescribed by the applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower (or the applicable Subsidiary) as will permit such payments to be made
without withholding at a reduced rate.
(e) For any period with respect to which a Bank has failed to provide
the Borrower with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which such form originally was required to be provided), such Bank
shall not be entitled to indemnification under Section 8.04(b) or 8.04(c) with
respect to Taxes imposed by the Relevant Jurisdiction or the United States, as
the case may be; provided that if a Bank, which is otherwise exempt from or
--------
subject to a reduced rate of withholding tax, becomes subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as such Bank shall reasonably request to assist such Bank to recover
such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 8.04, then such Bank will
change the jurisdiction of its Applicable Lending Office if, in the judgment of
such Bank, such change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise disadvantageous to such
Bank.
Section 8.05. Base Rate Loans Substituted for Affected Eurocurrency
Loans. If (i) the obligation of any Bank to make Eurocurrency Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03 or 8.04 with respect to its Eurocurrency Loans and the
Borrower shall, by at least five Eurocurrency Business Days' prior notice to
such Bank through the Administrative Agent, have elected that the provisions of
this Section shall apply to such Bank, then, unless and until such Bank notifies
the Borrower that the circumstances giving rise to such suspension or demand for
compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as
Eurocurrency Loans, shall be made instead as Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the related
Eurocurrency Loans of the other Banks), and
(b) after each of its Eurocurrency Loans has been repaid, all payments
of principal which would otherwise be applied to repay such Eurocurrency
Loans shall be applied to repay its Base Rate Loans instead.
Section 8.06. Substitution of Bank. If (i) the obligation of any
Bank to make Eurocurrency Loans has been suspended pursuant to Section 8.02 or
(ii) any Bank has demanded compensation under Section 8.03 or 8.04, the Borrower
shall have the right, with the assistance of the Administrative
31
Agent, to seek a mutually satisfactory substitute bank or banks (which may be
one or more of the Banks) to assume the Commitment of such Bank.
ARTICLE 9
Miscellaneous
Section 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrower or the Administrative Agent, at its
address, facsimile number or telex number set forth on the signature pages
hereof, (y) in the case of any Bank, at its address, facsimile number or telex
number set forth in its Administrative Questionnaire or (z) in the case of any
party, such other address, facsimile number or telex number as such party may
hereafter specify for the purpose by notice to the Administrative Agent and the
Borrower. Each such notice, request or other communication shall be effective
(i) if given by telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is received, (ii) if
given by facsimile transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is received or (iii) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article 2 or
--------
Article 8 shall not be effective until received.
Section 9.02. No Waivers. No failure or delay by the Administrative
Agent or any Bank in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 9.03. Expenses; Indemnification. (a) The Borrower shall pay
(i) all reasonable out-of-pocket expenses of the Administrative Agent, including
fees and disbursements of special counsel for the Administrative Agent, in
connection with the preparation and administration of this Agreement, any waiver
or consent hereunder or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all reasonable out-of-pocket
expenses incurred by the Administrative Agent and each Bank, including (without
duplication) the fees and disbursements of outside counsel and the allocated
cost of inside counsel, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify the Administrative Agent and
each Bank, their respective affiliates and the respective directors, officers,
agents and employees of the foregoing (each an "INDEMNITEE") and hold each
Indemnitee harmless from and against any and all liabilities, losses, damages,
reasonable costs and expenses of any kind, including, without limitation, the
reasonable fees and disbursements of counsel, which may be incurred by such
Indemnitee in connection with any investigative, administrative or judicial
proceeding (whether or not such Indemnitee shall be designated a party thereto)
brought or threatened relating to or arising out of this Agreement or any actual
or proposed use of proceeds of Loans hereunder; provided that (i) no Indemnitee
--------
shall have the right to be indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction, (ii) in the case of an investigation or a proceeding to which an
Indemnitee is not a party, such Indemnitee shall be entitled to indemnification
only if such Indemnitee is required to respond to process or other formal
inquiry in connection therewith and (iii) any claim for
32
indemnification hereunder shall be made not later than three years after the
termination of the Commitments and repayment in full of the Loans.
Section 9.04. Sharing of Set-Offs. The Banks agree among themselves
that if any Bank shall, by exercising any right of set-off or counterclaim or
otherwise, receive payment of a proportion of the aggregate amount of principal
and interest due with respect to any Loan made by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Loan made by such other Bank, the
Bank receiving such proportionately greater payment shall purchase such
participations in the Loans made by the other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Loans made by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
--------
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness hereunder.
Section 9.05. Amendments and Waivers. Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent); provided that no such amendment or waiver shall, unless
--------
signed by all the Banks, (i) increase or decrease the Commitment of any Bank
(except for a ratable decrease in the Commitments of all Banks) or subject any
Bank to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or any fees hereunder, (iii) postpone the date fixed for
any payment of principal of or interest on any Loan or any fees hereunder or for
termination of any Commitment or (iv) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Loans, or the number of
Banks, which shall be required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement.
Section 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "PARTICIPANT") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, such Bank shall remain responsible for
the performance of its Commitment and its other obligations hereunder, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations under this
Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
--------
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii), (iii) or
(iv) of Section 9.05 without the consent of the Participant. The Borrower
agrees that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of Article with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
33
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "ASSIGNEE") all, or a proportionate part of all, of its
rights and obligations under this Agreement, and such Assignee shall assume such
rights and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit D hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consent of the Borrower
and the Administrative Agent, which consents will not be unreasonably withheld;
provided that (i) if an Assignee is a Bank prior to giving effect to such
- --------
assignment or is an affiliate of such transferor Bank, no such consent shall be
required and (ii) if at the time of such assignment an Event of Default shall
have occurred and be continuing, no such consent of the Borrower shall be
required. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, such Assignee shall be a Bank
party to this Agreement and shall have all the rights and obligations of a Bank
with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. In connection with any such assignment, the transferor Bank shall pay
to the Administrative Agent an administrative fee for processing such assignment
in the amount of $2,500. If the Assignee is not incorporated under the laws of
the United States of America or a state thereof, it shall deliver to the
Borrower and the Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
Section 9.07. Collateral. Each of the Banks represents to each Agent
and each of the other Banks that it in good faith is not relying upon any Margin
Stock as collateral in the extension or maintenance of the credit provided for
in this Agreement.
Section 9.08 Governing Law; Submission to Jurisdiction. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. The Borrower hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
Section 9.09. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the
34
entire agreement and understanding among the parties hereto and supersedes any
and all prior agreements and understandings, oral or written, relating to the
subject matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.11. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may lawfully do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Domestic Business Day (or Eurocurrency Business Day if
applicable) immediately preceding the day on which final judgment is given.
(b) The obligations of each party hereto in respect of any sum due to
any other party hereto or any holder of the obligations owing hereunder (the
"APPLICABLE CREDITOR") shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than the currency in which such sum is stated to be
due hereunder (the "AGREEMENT CURRENCY"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such party agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the parties contained in this
Section 9.11 shall survive the termination of this Agreement and the payment of
all other amounts owing hereunder.
Section 9.12. European Economic and Monetary Union. (a) Definitions.
In this Section 9.12 and in each other provision of this Agreement to which
reference is made in this Section 9.12 expressly or impliedly, the following
terms have the meanings given to them in this Section 9.12:
"COMMENCEMENT OF THE THIRD STAGE OF EMU" means the date of
commencement of the third stage of EMU (at the date of this Credit
Agreement expected to be January 1, 1999) or the date on which
circumstances arise which (in the opinion of the Administrative Agent) have
substantially the same effect and result in substantially the same
consequences as commencement of the third stage of EMU as contemplated by
the Treaty on European Union.
"EMU" means economic and monetary union as contemplated in the Treaty
on European Union.
"EMU LEGISLATION" means legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the euro or otherwise), being in part
the implementation of the third stage of EMU;
"EURO" means the single currency of participating member states of the
European Union;
35
"EURO UNIT" means the currency unit of the euro;
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a euro
unit) of a participating member state;
"PARTICIPATING MEMBER STATE" means each state so described in any EMU
legislation; and
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of March 25, 1957,
as amended by the Single European Act 1986 and the Maastricht Treaty (which
was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of paragraphs (c) to
(j) below (inclusive) shall be effective at and from the commencement of the
third stage of EMU, provided, that if and to the extent that any such provision
--------
relates to any state (or the currency of such state) that is not a participating
member state on the commencement of the third stage of EMU, such provision shall
become effective in relation to such state (and the currency of such state) at
and from the date on which such state becomes a participating member state.
(c) Redenomination and Foreign Currencies. Each obligation under
this Agreement of a party to this Agreement which has been denominated in the
national currency unit of a participating member state shall be redenominated
into the euro unit in accordance with EMU legislation, provided, that if and to
--------
the extent that any EMU legislation provides that following the commencement of
the third stage of EMU an amount denominated either in the euro or in the
national currency unit of a participating member state and payable within that
participating member state by crediting an account of the creditor can be paid
by the debtor either in the euro unit or in that national currency unit, each
party to this Agreement shall be entitled to pay or repay any such amount either
in the euro unit or in such national currency unit.
(d) Loans. Any Loan in the currency of a participating member state
shall be made or issued in the euro unit.
(e) Business Days. With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a Saturday
or Sunday) on which banks are generally open for business in
(i) London and New York City and
(ii) Frankfurt am Main, Germany (or such principal financial center or
centers in such participating member state or states as the Administrative
Agent may from time to time nominate for this purpose).
(f) Payments to the Administrative Agent. Sections 2.02 and 2.10
shall be construed so that, in relation to the payment of any amount of euro
units or national currency units, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to such account with such bank in Frankfurt am Main, Germany (or such
other principal financial center in such participating member state as the
Administrative Agent may from time to time nominate for this purpose) as the
Administrative Agent shall from time to time nominate for this purpose.
36
(g) Payments by the Administrative Agent to the Banks. Any amount
payable by the Administrative Agent to the Banks under this Agreement in the
currency of a participating member state shall be paid in the euro unit.
(h) Payments by the Administrative Agent Generally. With respect to
the payment of any amount denominated in the euro or in a national currency
unit, the Administrative Agent shall not be liable to the Borrower or any of the
Banks in any way whatsoever for any delay, or the consequences of any delay, in
the crediting to any account of any amount required by this Agreement to be paid
by the Administrative Agent if the Administrative Agent shall have taken all
relevant steps to achieve, on the date required by this Agreement, the payment
of such amount in immediately available, freely transferable, cleared funds (in
the euro unit or, as the case may be, in a national currency unit) to the
account with the bank in the principal financial center in the participating
member state which the Borrower or, as the case may be, any Bank shall have
specified for such purpose. In this paragraph (h), "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the Administrative
Agent may from time to time determine for the purpose of clearing or settling
payments of the euro.
(i) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of any state that
becomes a participating member state shall be inconsistent with any convention
or practice in the London Interbank Market for the basis of accrual of interest
or fees in respect of the euro, such convention or practice shall replace such
expressed basis effective as of and from the date on which such state becomes a
participating member state; provided, that if any Loan in the currency of such
--------
state is outstanding immediately prior to such date, such replacement shall take
effect, with respect to such Loan, at the end of the then current Interest
Period for such Loan.
(j) Rounding and Other Consequential Changes. Without prejudice and
in addition to any method of conversion or rounding prescribed by any EMU
legislation and without prejudice to the respective liabilities for Debt of the
Borrower to the Banks and the Banks to any Borrower under or pursuant to this
Agreement:
(i) each reference in this Agreement to a minimum amount (or an
integral multiple thereof) in a national currency unit to be paid to or by
the Administrative Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Administrative Agent may from time to time
specify; and
(ii) except as expressly provided in this Section 9.12, each provision
of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to
be necessary or appropriate to reflect the introduction of or changeover to
the euro in participating member states.
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
ARMSTRONG WORLD INDUSTRIES, INC.
by
/s/ E. Follin Smith
--------------------
Name: E. Follin Smith
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent
by
/s/ Karen M. Scharf
---------------------
Name: Karen M. Scharf
Title: Vice President
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
individually and as Documentation Agent
by
/s/ John W. Pocalyko
----------------------
Name: John W. Pocalyko
Title: Managing Director
WACHOVIA BANK, N.A. individually and as Co-
Documentation Agent
by
/s/ Adam T. Ogburn
----------------------
Name: Adam T. Ogburn
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH as Co-Documentation
Agent,
by
38
/s/ Hans-Josef Thiele
-----------------------
Name: Hans-Josef Thiele
Title: Director
by
/s/ Stephan A. Wiedemann
--------------------------
Name: Stephan A. Wiedemann
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS
BRANCH individually,
by
/s/ Hans-Josef Thiele
-----------------------
Name: Hans-Josef Thiele
Title: Director
by
/s/ Stephan A. Wiedemann
--------------------------
Name: Stephan A. Wiedemann
Title: Director
BARCLAYS BANK PLC,
by
/s/ Terance Bullock
---------------------
Name: Terance Bullock
Title: Vice President
39
BW CAPITAL MARKETS, INC.,
by
/s/ Robert B. Herber
----------------------
Name: Robert B. Herber
Title: Managing Director
by
/s/ Thomas A. Lowe
-----------------------
Name: Thomas A. Lowe
Title: Vice President
BANQUE NATIONALE DE PARIS
by
/s/ Richard L. Sted
----------------------
Name: Richard L. Sted
Title: Senior Vice President
by
/s/ Thomas George
---------------------
Name: Thomas George
Title: Senior Vice President
Corporate Banking Division
40
UNICREDITO ITALIANO S.P.A.
by
/s/ Gianfranca Bisagni
-------------------------
Name: Gianfranca Bisagni
Title: First Vice President
by
/s/ Salyed A. Abbas
---------------------------
Name: Salyed A. Abbas
Title: Assistant Vice President
CITIBANK N.A.,
by
/s/ W. Martens
-----------------
Name: William G. Martens III
Title: Attorney-in-fact
FIRST UNION NATIONAL BANK,
by
/s/ Donald W. Hans, Jr.
----------------------------
Name: Donald W. Hans, Jr.
Title: Senior Vice President
41
THE FIRST NATIONAL BANK OF CHICAGO,
by
/s/ Robert McMillan
---------------------------
Name: Robert McMillan
Title: Corporate Banking Officer
GENERALE BANK,
by
/s/ David Snyder
----------------------
Name: David Snyder
Title: Senior Vice President
by
/s/ E. Matthews
---------------------
Name: E. Matthews
Title: Senior Vice President
LANDESGIROKASSE OFFENTLICHE BANK UND LANDESSPARKASSE,
by
/s/ Joachim Erdle
------------------------
Name: Joachim Erdle
Title:
42
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
by
/s/ Diana H. Imhof
---------------------
Name: Diana H. Imhof
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Brennan T. Danile
---------------------------
Name: Brennan T. Danile
Title: Corporate Banking Officer
SOCIETE GENERAL FINANCE (IRELAND) LIMITED
by
/s/ Therese Leonard
--------------------------
Name: Therese Leonard
Title: Account Manager
by
/s/ Richard Wanless
--------------------------
Name: Richard Wanless
Title: Managing Director
SUNTRUST BANK ATLANTA,
by
/s/ W. David Wisdom
--------------------------
Name: W. David Wisdom
Title: Group Vice President
by
/s/ Robin R. Cowan
-------------------------------
Name: Robin R. Cowan
Title: Operations Officer
43
WESTDEUTSCHE LANDESBANK,
by
/s/ Cynthia M. Niesen
--------------------------
Name: Cynthia M. Niesen
Title: Managing Director
by
/s/ Walter T. Duffy III
----------------------------
Name: Walter T. Duffy III
Title: Associate
MARINE MIDLAND BANK
by
/s/ William M. Holland
---------------------------
Name: William M. Holland
Title: Vice President
THE BANK OF NEW YORK
by
/s/ W. C. Paralli
--------------------
Name: W. C. Paralli
Title: Vice President
44
COMMITMENT SCHEDULE
BANK COMMITMENT
---- ----------
The Chase Manhattan Bank $35,500,000
Morgan Guaranty Trust Company of New York $35,500,000
Bank of America National Trust $35,500,000
& Savings Association
Wachovia Bank, N.A. $35,500,000
Deutsche Bank AG New York Branch $35,500,000
and/or Cayman Islands Branch
Barclays Bank PLC $21,750,000
Citibank N.A. $21,750,000
First Union National Bank $21,750,000
The First National Bank of Chicago $21,750,000
Marine Midland Bank $21,750,000
Societe Generale Finance (Ireland) Limited $21,750,000
Generale Bank $16,500,000
BW Capital Markets, Inc. $16,500,000
Banque Nationale De Paris $16,500,000
Unicredito Italiano S.p.A. $16,500,000
Landesgirokasse Offentliche $16,500,000
Bank Und Landessparkasse
PNC Bank, National Association $16,500,000
Suntrust Bank, Atlanta $16,500,000
Westdeutsche Landesbank $16,500,000
The Bank of New York $10,000,000
45
PRICING SCHEDULE
"FACILITY FEE RATE" and "EUROCURRENCY MARGIN" mean, for any date, the
applicable rate set forth below in the row opposite such term based upon the
ratings by S&P and Moody's, respectively, applicable on such date to the Index
Debt:
=========================================================================================================
Category 1 Category 2 Category 3 Category 4 Category 5 Category 6
A/A2 or A-/A3 BBB+/Baa1 BBB/Baa2 BBB/Baa2 BBB-/Baa3
Higher and A2/P2 and not or Lower
A2/P2
- ---------------------------------------------------------------------------------------------------------
Eurocurrency Margin 30.00 33.50 37.00 45.00 55.00 62.50
(bp)
Facility Fee Rate (bp) 5.00 6.50 8.00 10.00 10.00 12.50
=========================================================================================================
For purposes of the foregoing, (i) if S&P or Moody's shall not have in
effect a rating for the Index Debt, then such rating agency shall be deemed to
have established a rating in Category 5; (ii) if the ratings established or
deemed to have been established by S&P and Moody's for the Index Debt shall fall
within different categories, the applicable rate shall be based on (A) if the
ratings are in adjacent categories, the higher of the two ratings and (B) if the
ratings are in non-adjacent categories, the rating immediately below the higher
of the two ratings; and (iii) if the ratings established or deemed to have been
established by S&P and Moody's for the Index Debt shall be changed (other than
as a result of a change in the rating system of such rating agency), such change
shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the applicable rate shall apply during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change.
"MOODY'S" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"INDEX DEBT" means the senior unsecured long-term debt securities of
the Borrower without third-party enhancement, and any rating assigned to any
other debt security of the Borrower shall be disregarded.
46
EXHIBIT A
OPINION OF
COUNSEL FOR THE BORROWER
To the Banks and the Administrative Agent
Referred to Below
c/o The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
I have acted as counsel for Armstrong World Industries, Inc. (the
"BORROWER") in connection with the Credit Agreement (the "CREDIT AGREEMENT")
dated as of _________, 1998 among the Borrower, the banks listed on the
signature pages thereof and The Chase Manhattan Bank, as Administrative Agent.
Terms defined in the Credit Agreement are used herein as therein defined. This
opinion is being rendered to you at the request of my client pursuant to Section
3.01(c) of the Credit Agreement.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion.
I am licensed to practice law in the Commonwealth of Pennsylvania.
The law covered by this opinion is limited to the laws of the Commonwealth of
Pennsylvania and the Federal laws of the United States. I have assumed for the
purposes of this opinion that the substantive law of the State of New York is
identical in all material respects to the substantive law of the Commonwealth of
Pennsylvania.
Upon the basis of the foregoing, I am of the opinion that:
(1) The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of Pennsylvania, and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
(2) The execution, delivery and performance by the Borrower of the
Credit Agreement is within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the articles of incorporation or by-laws
of the Borrower or of any material agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of its
Subsidiaries or result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries.
(3) The Credit Agreement constitutes a valid and binding agreement of
the Borrower enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
47
(4) Except as disclosed in the Borrower's 1997 Form 10-K, in the
Borrower's Latest Form 10-Q or in the Borrower's Schedule 14D-1 filed with
the Securities and Exchange Commission in connection with the Offer, there
is no action, suit or proceeding pending against, or to the best of my
knowledge threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body,
agency or official, in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the business,
financial position, operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole, or the ability of the
Borrower to perform its obligations under the Credit Agreement, or which in
any manner draws into question the validity of the Credit Agreement.
(5) Each of the Borrower's Significant Subsidiaries is a corporation
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
Very truly yours,
48
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR]
(the "ASSIGNOR"), [ASSIGNEE] (the "ASSIGNEE"), ARMSTRONG
WORLD INDUSTRIES, INC. (the "BORROWER") and THE CHASE
MANHATTAN BANK, as Administrative Agent (the "ADMINISTRATIVE
AGENT").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "AGREEMENT")
relates to the Credit Agreement dated as of October 29, 1998 among the Borrower,
the Assignor and the other Banks party thereto, as Banks, and the Administrative
Agent (the "CREDIT AGREEMENT");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount at any
time outstanding not to exceed $__________;
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding at
the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "ASSIGNED AMOUNT"),
together with a corresponding portion of its outstanding Loans, and the Assignee
proposes to accept assignment of such rights and assume the corresponding
obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
Section 1.01. Definitions. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
Section 1.02. Assignment. The Assignor hereby assigns and sells to
the Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Loans made by the Assignor outstanding at the date hereof. Upon the execution
and delivery hereof by the Assignor, the Assignee[, the Borrower and the
Administrative Agent] and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be
49
obligated to perform the obligations of a Bank under the Credit Agreement with a
Commitment in an amount equal to the Assigned Amount, and (ii) the Commitment of
the Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
Section 1.03. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.* It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
Section 1.04. Consent of the Borrower and the Administrative Agent.
This Agreement is conditioned upon the consent of the Borrower and the
Administrative Agent pursuant to Section 9.06(c) of the Credit Agreement. The
execution of this Agreement by the Borrower and the Administrative Agent is
evidence of this consent.
Section 1.05. Nonreliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into *Amount should combine principal together with accrued
interest and breakage compensation, if any, to be paid by the Assignee, net of
any portion of any upfront fee to be paid by the Assignor to the Assignee. It
may be preferable in an appropriate case to specify these amounts generically or
by formula rather than as a fixed sum. This Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
Section 1.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.07. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
50
[ASSIGNOR]
by
___________________________
Name:
Title:
[ASSIGNEE]
by
___________________________
Name:
Title:
ARMSTRONG WORLD INDUSTRIES, INC.
by
___________________________
Name:
Title:
THE CHASE MANHATTAN BANK
by
___________________________
Name:
Title:
51
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.01. Definitions............................................... 1
Section 1.02. Accounting Terms and Determinations....................... 10
Section 1.03. Types of Borrowings....................................... 11
Section 1.04. Exchange Rates............................................ 11
ARTICLE 2
The Credits
Section 2.01. Commitments To Lend....................................... 11
Section 2.02. Procedure for Borrowing................................... 12
Section 2.03. Evidence of Debt.......................................... 13
Section 2.04. Maturity of Loans......................................... 14
Section 2.05. Interest Rates............................................ 14
Section 2.06. Facility Fees............................................. 16
Section 2.07. Optional Termination or Reduction of
Commitments; Extension of Commitments..................... 17
Section 2.08. Mandatory Termination and Reduction of
Commitments............................................... 17
Section 2.09. Optional Payments......................................... 18
Section 2.10. General Provisions as to Payments......................... 18
Section 2.11. Funding Losses............................................ 19
Section 2.12. Computation of Interest and Fees.......................... 20
Section 2.13. Increase in Commitments................................... 20
ARTICLE 3
Conditions
Section 3.01. Effectiveness............................................. 22
Section 3.02. Borrowings................................................ 23
ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence and Power............................. 23
Section 4.02. Corporate and Governmental Authorization;
No Contravention.......................................... 23
52
Section 4.03. Binding Effect............................................ 23
Section 4.04. Financial Information..................................... 24
Section 4.05. Litigation................................................ 24
Section 4.06. Environmental Matters..................................... 25
Section 4.07. Taxes..................................................... 25
Section 4.08. Significant Subsidiaries.................................. 25
Section 4.09. Not an Investment Company................................. 25
Section 4.10. Full Disclosure........................................... 25
ARTICLE 5
Covenants
Section 5.01. Information............................................... 26
Section 5.02. Payment of Obligations.................................... 27
Section 5.03. Maintenance of Property; Insurance........................ 28
Section 5.04. Conduct of Business and Maintenance....................... 28
Section 5.05. Compliance with Laws...................................... 28
Section 5.06. Inspection of Property, Books and Records................. 28
Section 5.07. Minimum Consolidated Net Worth............................ 29
Section 5.08. Negative Pledge........................................... 29
Section 5.09. Consolidations, Mergers and Sales of
Assets.................................................... 30
Section 5.10. Use of Proceeds........................................... 30
ARTICLE 6
Defaults
Section 6.01. Events of Default......................................... 30
Section 6.02. Notice of Default......................................... 32
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization............................. 33
Section 7.02. Administrative Agent and Affiliates....................... 33
Section 7.03. Action by Administrative Agent............................ 33
Section 7.04. Consultation with Experts................................. 33
Section 7.05. Liability of Administrative Agent......................... 33
Section 7.06. Indemnification........................................... 34
Section 7.07. Credit Decision........................................... 34
Section 7.08. Successor Administrative Agent............................ 34
Section 7.09. Agents' Fees.............................................. 34
Section 7.10. Other Agents.............................................. 35
ARTICLE 8
Change in Circumstances
53
Section 8.01. Basis for Determining Interest Rate
Inadequate................................................ 35
Section 8.02. Illegality................................................ 35
Section 8.03. Increased Cost and Reduced Return......................... 36
Section 8.04. Taxes..................................................... 37
Section 8.05. Base Rate Loans Substituted for Affected
Eurocurrency Loans........................................ 39
Section 8.06. Substitution of Bank...................................... 39
ARTICLE 9
Miscellaneous
Section 9.01. Notices................................................... 39
Section 9.02. No Waivers................................................ 40
Section 9.03. Expenses; Indemnification................................. 40
Section 9.04. Sharing of Set-Offs....................................... 41
Section 9.05. Amendments and Waivers.................................... 41
Section 9.06. Successors and Assigns.................................... 41
Section 9.07. Collateral................................................ 43
Section 9.08. Governing Law; Submission to Jurisdiction................. 43
Section 9.09. Counterparts; Integration................................. 43
Section 9.10. WAIVER OF JURY TRIAL...................................... 43
Section 9.11. Conversion of Currencies.................................. 43
Section 9.12. European Economic and Monetary Union...................... 44
SCHEDULES
Commitment Schedule
Pricing Schedule
EXHIBITS
Exhibit A Opinion of Counsel for the Borrower
Exhibit B Assignment and Assumption Agreement
54