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EXHIBIT 99.5
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT (FACILITY B)
THIS COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT (FACILITY B) dated as of June 27, 1997, among:
(a) SERVICE CORPORATION INTERNATIONAL, a Texas corporation
(the "Company");
(b) 611102 Saskatchewan Ltd., a Saskatchewan corporation, and
Service Corporation International Australia Pty Limited, a company limited by
shares incorporated in South Australia (collectively, the "Initial Borrowing
Subsidiaries"), and each other "Borrowing Subsidiary", as herein defined, that
becomes party hereto;
(c) the banks and other financial institutions named under the
caption "Banks" on the signature pages hereof (such banks together with each
other Person who becomes a Bank pursuant to Section 9.11, collectively, the
"Banks");
(d) THE CHASE MANHATTAN BANK, a New York banking corporation,
as administrative agent for the Banks (in such capacity together with any other
Person who becomes the Administrative Agent pursuant to Section 7.06, the
"Administrative Agent"); and
(e) BANK OF AMERICA ILLINOIS, CITIBANK N.A., NATIONSBANK,
N.A., ROYAL BANK OF CANADA, SOCIETE GENERALE, and UNION BANK OF SWITZERLAND
(collectively, the "Co-Agents").
PRELIMINARY STATEMENT
The Company has requested that the Banks extend a credit
facility to the Company and the Borrowing Subsidiaries in order to enable the
Company and the Borrowing Subsidiaries to borrow on a revolving credit basis on
and after the date hereof, on the terms and conditions set forth herein, a
principal amount not in excess of $700,000,000 at any time outstanding. The
Company has also requested that the Banks provide a procedure pursuant to which
each Bank may, on an uncommitted basis, bid up to the full amount of the Total
Commitment (as herein defined), regardless of such Bank's individual Commitment,
on borrowings by the Company and the Borrowing Subsidiaries thereunder. The
proceeds of all such borrowings are to be used for general corporate purposes of
the Borrowers including credit support for the Company's commercial paper
program. The Banks are willing to extend such credit to the Company and the
Borrowing
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Subsidiaries on the terms and subject to the conditions herein set forth.
Accordingly, the Company, the Borrowing Subsidiaries, the Banks and the
Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS, ACCOUNTING TERMS AND CONSTRUCTION
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
"ABR Borrowing" means a Borrowing comprised of ABR Loans.
"ABR Loan" means any Committed Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acquisition" means the acquisition by the Company or any of
its Subsidiaries of a business, including any assets, leases and liabilities
(contingent or otherwise) related thereto, either by the cash purchase of stock
or assets or by an exchange or issuance of securities (including merger) or
assumption of liabilities or by a combination thereof.
"Administrative Agent" has the meaning specified in the
introduction to this Agreement.
"Administrative Questionnaire" means an Administrative
Questionnaire in the form of Exhibit 1.01A, which each Bank shall complete and
provide to the Administrative Agent and the Company.
"Affiliate" means, when used with respect to any Person, any
other Person which controls or is controlled by or is under common control with
such Person. As used in this definition, "control" means the possession,
directly or indirectly, of power to direct or cause the direction of management
or policies (whether through ownership of securities or partnership or ownership
interests, by contract or otherwise).
"Agent's Fee Letter" means the fee letter agreement dated
April 29, 1997 between the Company and the Administrative Agent.
"Aggregate Competitive Loan Exposure" means the aggregate
amount of the Banks' Competitive Loan Exposures.
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"Aggregate Outstanding Dollar Revolving Extensions of Credit"
means as to any Bank at any time, the aggregate principal amount of all
Committed Loans made by such Bank then outstanding.
"Aggregate Revolving Credit Exposure" means the aggregate
amount of the Banks' Revolving Credit Exposures.
"Agreement" means this Competitive Advance and Revolving
Credit Facility Agreement (Facility B).
"Agreement Currency" has the meaning assigned to such term in
Section 9.17.
"Alternate Base Rate" means, for any date, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. "Prime Rate" means, as of a
particular date, the prime rate most recently determined by the Administrative
Agent at the Principal Office, automatically fluctuating upward and downward
with and at the time specified in each such announcement without notice to any
Borrower or any other Person, which prime rate may not necessarily represent the
lowest or best rate actually charged to a customer. "Federal Funds Effective
Rate" means, for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination, made in good faith, shall create a
rebuttable presumption that the same is accurate) that it is unable to ascertain
the Federal Funds Effective Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Creditor" has the meaning specified in Section
9.17.
"Applicable Differential" means, on any date, with respect to
a Eurodollar Committed Borrowing, the applicable differential for such Borrowing
set forth below based upon the rating applicable on such date to the Index Debt:
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Eurodollar Committed
Loan Differential
(in 1/100 of 1% per annum)
--------------------------
Category 1
A or higher by S&P; or A2 or higher
by Moody's 13.0
Category 2
Lower than A and equal to or higher
than BBB + by S&P; or lower than
A2 and equal to or higher than Baa1
by Moody's 14.0
Category 3
BBB by S&P; or Baa2
by Moody's 20.0
Category 4
BBB - or lower by S&P; or Baa3 or
lower by Moody's 25.0
For purposes of the foregoing, (a) if neither Moody's nor S&P shall have in
effect a rating for the Index Debt, then both such rating agencies will be
deemed to have established ratings for the Index Debt in Category 4; (b) if only
one of S&P and Moody's shall have in effect a rating for the Index Debt, the
Company and the Banks will negotiate in good faith to agree upon another rating
agency to be substituted by an amendment to this Agreement for the rating agency
which shall not have a rating in effect, and, pending the effectiveness of such
amendment, the Applicable Differential will be determined by reference to the
available rating; (c) if the ratings established or deemed to have been
established by S&P and Moody's shall fall within different Categories, the
Applicable Differential shall be determined by reference to the superior (or
numerically lower) Category; and (d) if any rating established or deemed to have
been established by S&P or Moody's shall be changed (other than as a result of a
change in the rating system of either Moody's or S&P), such change shall be
effective as of the date on which such change is first announced by the rating
agency making such change. Each change in the Applicable Differential shall
apply to all Eurodollar Committed Loans that are outstanding at any time during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the
rating system of either S&P or Moody's shall change prior to the Maturity Date,
the Company and the Banks shall negotiate in good faith to amend the references
to specific ratings in this definition to reflect such changed rating system.
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"Applicable Fee Percentage" means, on any date, with respect
to the Total Commitment, the applicable percentage set forth below based upon
the rating applicable on such date to the Index Debt:
Applicable Fee Percentage
in 1/100 of 1% per annum
------------------------
Category 1
A or higher by S&P; or A2 or higher
by Moody's 7.0
Category 2
Lower than A and equal to or higher
than BBB + by S&P; or lower than
A2 and equal to or higher than Baa1
by Moody's 8.0
Category 3
BBB by S&P; or Baa2
by Moody's 10.0
Category 4
BBB- or lower by S&P; or Baa3 or
lower by Moody's 15.0
For purposes of the foregoing, (a) if neither Moody's nor S&P shall have in
effect a rating for the Index Debt, then both such rating agencies will be
deemed to have established ratings for the Index Debt in Category 4; (b) if only
one of S&P and Moody's shall have in effect a rating for the Index Debt, the
Company and the Banks will negotiate in good faith to agree upon another rating
agency to be substituted by an amendment to this Agreement for the rating agency
which shall not have a rating in effect, and, pending the effectiveness of such
amendment, the Applicable Fee Percentage will be determined by reference to the
available rating; (c) if the ratings established or deemed to have been
established by S&P and Moody's shall fall within different Categories, the
Applicable Fee Percentage shall be determined by reference to the superior (or
numerically lower) Category; and (d) if any rating established or deemed to have
been established by S&P or Moody's shall be changed (other than as a result of a
change in the rating system of either S&P or Moody's), such change shall be
effective as of the date on which such change is first announced by the rating
agency making such change. Each change in the Applicable Fee Percentage shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change. If the rating system of either S&P or Moody's shall change prior to the
Maturity Date, the Company and the Banks shall negotiate in good faith to amend
the references to specific ratings in this definition to reflect such changed
rating system.
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"Applicable Lending Office" means, with respect to each Bank,
such Bank's Domestic Lending Office in the case of an ABR Loan or a Fixed Rate
Loan denominated in Dollars, such Bank's Eurocurrency Lending Office in the case
of a Eurocurrency Loan and such Bank (or its Affiliate, branch or agency, as
specified by such Bank) in the case of a Foreign Currency Loan.
"Assignment and Acceptance" has the meaning specified in
Section 9.11(c).
"Assurance" means, as to any Person, any guaranty or other
contingent liability of such Person (other than any endorsement for collection
or deposit in the ordinary course of business) including, without limitation,
contingent liabilities as an account party in respect of letters of credit,
direct or indirect, with respect to any obligation of another Person, through an
agreement or otherwise, including (a) any endorsement or discount with recourse
or other undertaking substantially equivalent to or having economic effect
similar to a guarantee in respect of any such obligation and (b) any agreement
(i) to purchase, or to advance or supply funds for the payment or purchase of,
any such obligation, (ii) to purchase, sell or lease property, products,
materials or supplies, or transportation or services, in order to enable such
other Person to pay any such obligation or to assure the owner thereof against
loss regardless of the delivery or non-delivery of the property, products,
materials or supplies or transportation or services or (iii) to make any loan,
advance or capital contribution to or other investment in, or to otherwise
provide funds to or for, such other Person in order to enable such Person to
satisfy any obligation (including any liability for a dividend, stock
liquidation payment or expense) or to assure a minimum equity, working capital
or other balance sheet condition for the benefit of the holder of any such
obligation. Notwithstanding the foregoing, the term "Assurance" shall not
include any guaranty or other contingent liability, direct or indirect, with
respect to (u) bonds, indemnity agreements and similar arrangements which are
provided to assure that the Company and its Subsidiaries fully perform their
obligations regarding prearranged funeral services and goods and/or construction
of burial facilities, (v) obligations of a Person acquired, or of a business
which has been acquired, in an Acquisition, provided that such obligations arose
prior to such Acquisition and were not created, incurred or assumed in
contemplation thereof, (w) obligations of a Subsidiary arising from an
Acquisition, (x) any duly authorized registered guaranty of the Company of a
promissory note of its Subsidiary issued or to be issued with respect to an
Acquisition in accordance with an Indenture dated as of May 1, 1970, executed
and delivered between the Company and TCB, as Trustee, (y) Letters of Credit, or
(z) obligations of the Company under the Enhancement Agreements. In no event
shall any unfunded commitment extended by Provident in the ordinary course of
its business of extending financing to the death care industry be considered an
Assurance and the loans and advances made by Provident pursuant to any such
commitment shall constitute investments and not Assurances. The amount of any
Assurance shall be equal to the outstanding amount of the obligation directly or
indirectly guaranteed (to the full extent of the obligation in respect of which
such Assurance is given or the maximum liability in respect of such Assurance of
the Person giving the same, whichever shall be less).
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"Assured Obligation" means, as to any Person, any amount
guaranteed or otherwise supported by such Person pursuant to an Assurance.
"Australian Addendum" means the Foreign Currency Addendum,
dated as of the date hereof, between the Company, Service Corporation
International Australia Pty Limited, and the Foreign Currency Agent and the
Foreign Currency Banks named therein.
"Available Commitment" means as to any Bank, at any time of
determination, an amount equal to such Bank's Commitment at such time minus such
Bank's Revolving Credit Exposure at such time.
"Bank of America" means Bank of America National Trust and
Savings Association.
"Banks" has the meaning specified in the introduction to this
Agreement.
"Board" means the Board of Governors of the Federal Reserve
System of the United States.
"Borrowers" means the Company and the Borrowing Subsidiaries.
"Borrowing" means a Loan or group of Loans of a single Type
and currency made by the Banks (or, in the case of a Competitive Borrowing, by
the Bank or Banks whose Competitive Bids have been accepted pursuant to Section
2.03) on a single date and as to which a single Interest Period is in effect.
"Borrowing Date" means, with respect to each Borrowing made
pursuant to Section 2.03 or Section 2.04, the Business Day upon which the
proceeds of such Borrowing are to be made available to a Borrower.
"Borrowing Subsidiary" means each Initial Borrowing Subsidiary
and any other Wholly-owned Subsidiary of the Company (other than an Inactive
Subsidiary) designated as a Borrowing Subsidiary by the Company pursuant to
Section 2.22.
"Borrowing Subsidiary Counterpart" has the meaning specified
in Section 2.22.
"Business Day" means any day other than a Saturday, Sunday or
legal holiday in the State of New York or Texas or other day on which banks in
New York City or in Houston, Texas are required or authorized by law to close;
provided, however, that, when used in connection with a Eurocurrency Loan, the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in deposits in Dollars or the relevant Foreign Currency in the London
interbank market.
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"Calculation Date" means the last Business Day of each
calendar week.
"Canadian Addendum" means the Foreign Currency Addendum, dated
as of the date hereof, between the Company, 611102 Saskatchewan Limited, and the
Foreign Currency Agent and the Foreign Currency Banks named therein.
"Capital Lease" means, as to any Person, any lease in respect
of which the obligations of such Person constitute Capitalized Lease
Obligations.
"Capitalized Lease Obligations" means, as to any Person, all
lease obligations which shall have been or should be, in accordance with GAAP,
capitalized on the books of such Person.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation and the successor to Chemical Bank, a New York banking corporation.
"Co-Agents" has the meaning specified in the introduction to
this Agreement.
"Code" means the Internal Revenue Code of 1986 and the
regulations promulgated thereunder.
"Commitment" means, with respect to each Bank, the amount set
forth beneath the name of such Bank on the signature pages hereof (or, as to any
Person that becomes a Bank after the Execution Date, on the signature page of
the Assignment and Acceptance executed by such Person), as such amount may be
permanently terminated or reduced from time to time pursuant to Section 2.12,
Section 2.14, Section 2.15 or Section 9.11, and as such amount may be increased
from time to time by assignment or assumption pursuant to Section 2.14, Section
2.15 or Section 9.11. The Commitment of each Bank shall automatically and
permanently terminate on the Maturity Date.
"Committed Borrowing" means a borrowing consisting of
concurrent Committed Loans from each of the Banks pursuant to Section 2.04
distributed ratably among the Banks in accordance with their respective
Available Commitments or resulting from a conversion or continuation of an
existing Committed Borrowing pursuant to Section 2.06.
"Committed Borrowing Request" has the meaning specified in
Section 2.04.
"Committed Loans" means the revolving loans made by the Banks
to the Company pursuant to Section 2.04. Each Committed Loan shall be a
Eurodollar Committed Loan or an ABR Loan. The term "Committed Loan" shall not
include any Foreign Currency Revolving Loan.
"Communications" has the meaning specified in Section 9.02.
"Company" has the meaning specified in the introduction to
this Agreement.
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"Company Financials" has the meaning specified in Section
4.07.
"Competitive Bid" means an offer by a Bank to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Bank pursuant to Section 2.03(b), (i) in the case of a Eurocurrency
Competitive Loan, the Margin (which will be added to or subtracted from the IBO
Rate), and (ii) in the case of a Fixed Rate Loan, the fixed rate of interest, in
each case, offered by the Bank making such Competitive Bid.
"Competitive Bid Request" means a request for Competitive Bids
made pursuant to Section 2.03 in the form of Exhibit 2.03A.
"Competitive Borrowing" means a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from each Bank whose
Competitive Bid as all or as a part of such borrowing, as the case may be, has
been accepted by a Borrower under the bidding procedure described in Section
2.03.
"Competitive Loan" means a Loan from a Bank to a Borrower
pursuant to the bidding procedure described in Section 2.03, and shall be either
a Eurocurrency Competitive Loan or a Fixed Rate Loan, and shall include a
Competitive Loan denominated in a Foreign Currency.
"Competitive Loan Exposure" means, with respect to any Bank at
any time, the sum of the aggregate principal amount of all outstanding
Competitive Loans made by such Bank denominated in Dollars and the Dollar
Equivalent of all outstanding Competitive Loans made by such Bank denominated in
Foreign Currencies.
"Consolidated Assets" means, as to any Person, total
consolidated assets (including assets subject to Capital Leases) of such Person
and of its Consolidated Subsidiaries, as determined in accordance with GAAP.
"Consolidated Debt" means the Debt of the Company and its
Consolidated Subsidiaries.
"Consolidated Net Income" means consolidated net income (after
taxes) of the Company and its Consolidated Subsidiaries determined in accordance
with GAAP.
"Consolidated Subsidiary" means, with respect to any Person,
each Subsidiary of such Person the accounts of which are or should be
consolidated with the accounts of such Person in reporting the consolidated
financial statements of such Person in accordance with GAAP.
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"Debt" means, when used with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred purchase
price of property or services (excluding, however, Letter of Credit Obligations
of such Person), (b) all indebtedness created or arising under any conditional
sale or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of
such property), (c) all Capitalized Lease Obligations of such Person, (d) all
obligations of such Person in respect of interest rate protection agreements,
foreign currency exchange agreements or other similar agreements and
arrangements (the amount of any such obligation to be the amount that would be
payable upon the acceleration, termination or liquidation thereof), (e)
liabilities in respect of unfunded vested benefits under Plans, and (f) all Debt
of such Person referred to in clause (a), (b) (c) or (d) above secured by (or
for which the holder of such Debt has an existing right, contingent or otherwise
to be secured by) any Lien upon or interest in property (including accounts and
general intangibles, as such terms are defined in the Uniform Commercial Code in
effect in the State of New York) owned by such Person, even though such Person
has not assumed or become liable for the payment of such Debt. For purposes of
this Agreement, the term "Debt" shall exclude (i) Operating Lease Obligations
and (ii) obligations in respect of agreements and arrangements described in
clause (d) above to the extent (and only to the extent) such agreements and
arrangements are entered into to protect such Person and its Subsidiaries
against interest rate and exchange rate risks related to their respective
businesses, and not for speculative purposes.
"Default" means the occurrence of any event which with the
giving of notice or the passage of time or both could become an Event of
Default.
"Document" has the meaning specified in Section 8.02.
"Dollar Borrowing" means a Borrowing comprised of Dollar
Loans.
"Dollar Equivalent" means, on any date of determination, with
respect to any amount in any Foreign Currency, the equivalent in Dollars of such
amount, determined by the Administrative Agent using the Exchange Rate with
respect to such Foreign Currency then in effect as determined pursuant to
Section 1.04(a).
"Dollar Facility Excess" has the meaning specified in Section
2.24(b).
"Dollar Facility Overage" means an amount equal to the excess
of (a) the Total Commitment over (b) the aggregate amount of all Foreign
Currency Facility Maximum Borrowing Amounts (determined, if applicable, after
giving effect to any reduction therein made pursuant to Section 2.24(c)).
"Dollar Loan" means any Loan denominated in Dollars.
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"Dollar Revolving Credit Excess" has the meaning specified in
Section 2.24(a).
"Dollar Revolving Credit Overage" means, with respect to any
Bank, an amount equal to the excess, if any, of (a) such Bank's Commitment over
(b) the aggregate Foreign Currency Bank Maximum Borrowing Amounts with respect
to all Foreign Currency Addenda to which such Bank or any of its Affiliates is a
party.
"Dollars", "dollars" and the symbol "$", without more, mean
the lawful currency of the United States of America.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" on such Bank's
signature page to this Agreement or, as to any Person who becomes a Bank after
the Execution Date, on the signature page of the Assignment and Acceptance
executed by such Person or such other office of such Bank as such Bank may
hereafter designate from time to time as its "Domestic Lending Office" by notice
to the Company and the Administrative Agent.
"Effective Date" means the date on which the conditions to
borrowing set forth in Article III are first met.
"Eligible Assignee" means (a) any Bank or any Affiliate of a
Bank; (b) a commercial bank organized or licensed under the laws of the United
States, or any state thereof, and having total assets in excess of
$1,000,000,000; (c) a commercial bank organized under the laws of any other
country which is a member of the OECD, or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000; provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (d) the central
bank of any country which is a member of the OECD; and (e) any other lender
approved by the Administrative Agent and the Company (which approval shall not
be unreasonably withheld).
"Enforcement Subsidiary" means, as to Provident, any
Wholly-owned Subsidiary formed by Provident for the purpose of foreclosing or
otherwise realizing upon the assets securing obligations due to Provident
pursuant to investments made by Provident.
"Enhancement Agreements" means the Support Agreements, the
Inducement Agreement and all other similar agreements.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated thereunder.
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"ERISA Group" means all corporations, trades or businesses
(whether or not incorporated) and other Persons which, together with the
Company, are treated as a single employer under Section 414(b), (c), (m) or (o)
of the Code.
"Eurocurrency Borrowing" means a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Competitive Loan" means any Competitive Loan
(including any Competitive Loan denominated in any Foreign Currency) bearing
interest at a rate determined by reference to the IBO Rate in accordance with
the provisions of Article II.
"Eurocurrency Foreign Currency Borrowing" means any Borrowing
comprised of Eurocurrency Foreign Currency Loans.
"Eurocurrency Foreign Currency Loan" means any Foreign
Currency Revolving Loan bearing interest at a rate determined by reference to
the IBO Rate in accordance with the provisions of Article II.
"Eurocurrency Lending Office" means, with respect to each
Bank, the branch or Affiliate of such Bank which such Bank has designated as its
"Eurocurrency Lending Office" on such Bank's signature page to this Agreement
or, as to any Person who becomes a Bank after the Execution Date, on the
signature page of the Assignment and Acceptance executed by such Person or such
other office of such Bank as such Bank may hereafter designate from time to time
as its "Eurocurrency Lending Office" by notice to the Company and the
Administrative Agent.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D.
"Eurocurrency Loan" means any Eurocurrency Competitive Loan,
Eurodollar Committed Loan or Eurocurrency Foreign Currency Loan.
"Eurodollar Committed Borrowing" means any Committed Borrowing
comprised of Eurodollar Committed Loans.
"Eurodollar Committed Loan" means any Committed Loan bearing
interest at a rate determined by reference to the IBO Rate in accordance with
the provisions of Article II.
"Event of Default" means any of the events described in
Article VI.
"Exchange Rate" means with respect to any Foreign Currency on
a particular date, the rate at which such Foreign Currency may be exchanged into
Dollars, as set forth on such date on the Reuters currency page more
particularly described in the Foreign Currency Addendum for Loans to be made in
such Foreign Currency. In the event that such rate does not appear on any
Reuters currency page, the Exchange Rate with respect to such Foreign Currency
shall be determined by
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reference to such other publicly available service for displaying exchange rates
as may be agreed upon by the Administrative Agent and the Borrower or, in the
absence of such agreement, such Exchange Rate shall instead be the
Administrative Agent's spot rate of exchange in the interbank market where its
foreign currency exchange operations in respect of such Foreign Currency are
then being conducted, at or about 10:00 A.M., local time, at such date for the
purchase of Dollars with such Foreign Currency, for delivery two Business Days
later; provided, however, that if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems applicable to determine such rate, and such
determination shall, to the extent permitted by law, be conclusive absent
manifest error.
"Execution Date" means the earliest date upon which all of the
following shall have occurred: counterparts of this Agreement shall have been
executed by the Company, each Bank and the Administrative Agent, and the
Administrative Agent shall have received counterparts hereof which taken
together, bear the signatures of the Company and each Bank.
"Existing Agreements" means (a) the Competitive Advance and
Revolving Credit Facility Agreement (Facility A) dated as of June 30, 1995 among
the Company, the banks and other financial institutions party thereto, Bank of
America and NationsBank, as co-agents, Chase, as auction administration agent,
and TCB, as administrative agent, as amended from time to time to the date
hereof, and (b) the Existing Facility B Credit Agreement.
"Existing Facility B Credit Agreement" means the Competitive
Advance and Revolving Credit Facility Agreement (Facility B) dated as of June
30, 1995 among the Company, the other Borrowers (as defined therein), the banks
and other financial institutions party thereto, Bank of America and NationsBank,
as co-agents, Chase, as auction administration agent, and TCB, as administrative
agent, together with (a) the Sterling Addendum dated as of July 13, 1995 among
the Company, Family Funeral Directors Limited, the local lenders party thereto
and Chemical Investment Bank Limited, as local currency agent for such local
lenders, (b) the Australian Addendum dated as of July 13, 1995 among the
Company, Service Corporation International Australia Pty Limited, the local
lenders party thereto and Westpac Banking Corporation, as local currency agent
for such local lenders and (c) the Canadian Addendum dated as of August 30, 1995
among the Company, 611102 Saskatchewan Ltd., the local lenders party thereto and
Royal Bank of Canada, as local currency agent for such local lenders.
"Facility A Credit Agreement" means the Competitive Advance
and Revolving Credit Facility Agreement (Facility A) dated as of the date hereof
among the Company, the other Borrowers (as defined therein), the banks and other
financial institutions party thereto, Chase, as administrative agent, and the
Co-Agents (as defined therein).
"Facility Fees" has the meaning specified in Section 2.07(a).
"FDIC" means the Federal Deposit Insurance Corporation (or any
successor thereto).
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"Federal Funds Effective Rate" has the meaning specified in
the definition of the term Alternate Base Rate.
"Financial Provisions" has the meaning specified in Section
1.02(c).
"Fixed Rate Borrowing" means a Borrowing comprised of Fixed
Rate Loans.
"Fixed Rate Loan" means any Competitive Loan (including any
Competitive Loan denominated in any Foreign Currency) bearing interest at a
fixed percentage rate per annum specified by the Bank making such Loan in its
Competitive Bid.
"Foreign Currency" means, as the context may require, any or
all of (a) the Australian dollar, or other lawful currency of the Commonwealth
of Australia, (b) the Belgian franc, or other lawful currency of the Kingdom of
Belgium, (c) the Canadian dollar, or other lawful currency of Canada, (d) the
French franc, or other lawful currency of the Republic of France, (e) the mark,
or other lawful currency of the Federal Republic of Germany, (f) the pound
sterling, or other lawful currency of the United Kingdom of Great Britain and
Northern Ireland, (g) the lire, or other lawful currency of currency of the
Italian Republic, (h) the Dutch guilder, or other lawful currency of the Kingdom
of The Netherlands, (i) the peseta, or other the lawful currency of the Republic
of Spain, (j) the Swiss franc, or other lawful currency of the Swiss
Confederation, and (k) any currency that is adopted as a Foreign Currency
pursuant to Section 2.22, provided, in any such case, that an Exchange Rate may
be calculated with respect thereto, and provided, further, that this definition
and Section 2.22 shall in any circumstances and in all events be subject to the
provisions of Section 9.18.
"Foreign Currency Addendum" means the Australian Addendum, the
Canadian Addendum, the Multicurrency Addendum, and each other foreign currency
addendum between the Company, one or more Borrowing Subsidiaries, the Foreign
Currency Agent named therein and one or more Foreign Currency Banks, in a form
acceptable to the Company, such Borrowing Subsidiaries, such Foreign Currency
Agent and such Foreign Currency Banks, the acceptability of such agreement to
any such Person being conclusively evidenced by its execution by such Person.
"Foreign Currency Agent" means, with respect to any Foreign
Currency Addendum, the Person named as the foreign currency agent therein.
"Foreign Currency Bank" means any Bank (or any Affiliate,
branch or agency thereof) party to a Foreign Currency Addendum. In the event any
agency or Affiliate of a Bank shall be party to a Foreign Currency Addendum,
such agency or Affiliate shall, to the extent of any commitment extended and any
Loans made by it, have all the rights of such Bank hereunder, provided, that
such Bank shall continue to the exclusion of such agency or Affiliate to have
all the voting and consensual rights vested in it by the terms hereof.
FACILITY B
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"Foreign Currency Bank Maximum Borrowing Amount" has the
meaning specified in Section 2.23(b).
"Foreign Currency Borrowing" means a Borrowing comprised of
Foreign Currency Loans.
"Foreign Currency Equivalent" means, on any date of
determination, with respect to any amount in Dollars, the equivalent in the
relevant Foreign Currency of such amount, determined by the Administrative Agent
using the Exchange Rate (or the inverse of such Exchange Rate, as the case may
be) with respect to such Foreign Currency then in effect as determined pursuant
to Section 1.04(a).
"Foreign Currency Facility Maximum Borrowing Amount" has the
meaning specified in Section 2.23(b).
"Foreign Currency Loan" means any Loan denominated in a
currency other than Dollars. A Foreign Currency Loan shall be a Competitive Loan
or a Foreign Currency Revolving Loan.
"Foreign Currency Loans (Dollar Equivalent)" means the Dollar
Equivalent of the relevant Foreign Currency Loans.
"Foreign Currency Revolving Borrowing" means any Borrowing
comprised of Foreign Currency Revolving Loans.
"Foreign Currency Revolving Loan" means any Foreign Currency
Loan other than a Competitive Loan.
"FST" means SCI Texas Funeral Services, Inc., a Texas
corporation.
"Funded Debt" means any Debt of any Person (including any
Capitalized Lease Obligation of such Person, but not including any deferred
taxes) payable more than one year from the date of the creation thereof;
provided, however, the term Funded Debt shall include the principal amount of
all Loans outstanding under this Agreement and the principal amount of all loans
outstanding under the Facility A Credit Agreement. The interests of minority
shareholders in such Person's Consolidated Subsidiaries which are shown on the
liability side of a balance sheet as "minority interests" but which are not
"obligations" are not within the definition of "Funded Debt."
"GAAP" means generally accepted accounting principles as set
forth in the opinions, statements and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants, the
Financial Accounting Standards Board and such other Persons as shall be approved
by a significant segment of the accounting profession and concurred in by the
FACILITY B
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independent certified public accountants certifying any audited financial
statements of the Company, as such principles shall be in effect at the time of
any computation or determination or as of the date of the relevant financial
statements, as the case may be (the "Relevant Date"), subject to Section 1.02.
"Guaranteed Obligations" has the meaning specified in Section
8.01.
"Guaranty" means the guaranty of the Company contained in
Article VIII.
"Highest Lawful Rate" means, as to any Bank, at the particular
time in question, the maximum nonusurious rate of interest which, under
applicable law, such Bank is then permitted to charge the Borrowers on the
Loans. If the maximum rate of interest which, under applicable law, the Banks
are permitted to charge the Borrowers on the Loans shall change after the date
hereof, to the extent permitted by applicable law, the Highest Lawful Rate shall
be automatically increased or decreased, as the case may be, as of the effective
time of such change without notice to any Borrower or any other Person.
"Home Jurisdiction Withholding Taxes" means (a) in the case of
the Company, withholding for United States income taxes, United States back-up
withholding taxes and United States withholding taxes and (b) with respect to
611102 Saskatchewan Ltd., withholding for withholding taxes imposed by the
Dominion of Canada, (c) with respect to the Service Corporation International
Australia Pty Limited, withholding for withholding taxes imposed by the
Commonwealth of Australia and (d) withholding for withholding taxes imposed by
any country whose currency is added as a Foreign Currency pursuant to Section
2.25.
"IBO Rate" means, with respect to each date during each
Interest Period pertaining to a Eurocurrency Borrowing (other than an Interest
Period of 14 days), the rate appearing on page 3740 or 3750, as the case may be,
of the Dow Jones Markets (or on any successor or substitute page, or on any page
of any successor to or substitute for Dow Jones Markets, providing rate
quotations comparable to those currently provided on such page, as determined by
the Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to deposits in Dollars or the applicable Foreign
Currency in the London interbank market) or if any such currency does not appear
on either such page (or any such successor or substitute page, or page of any
successor to as substitute for Dow Jones Markets), such additional page of the
Dow Jones Markets upon which such currency appears, as agreed between the
Administrative Agent and the Company from time to time, at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest
Period, as the rate for deposits in Dollars or the applicable Foreign Currency
approximately equal in principal amount to such Eurocurrency Borrowing and with
a maturity equal to such Interest Period. In the event that such rate is not
available at such time for any reason and in the case of any Interest Period of
14 days, then the "IBO Rate" with respect to such Eurocurrency Borrowing for
such Interest Period shall be the rate (rounded to the nearest 1/16 of 1% or, if
there is no nearest 1/16 of 1%, the next higher 1/16 of 1%) at which deposits in
Dollars or the
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applicable Foreign Currency approximately equal in principal amount to such
Eurocurrency Borrowing and with a maturity equal to such Interest Period are
offered in immediately available funds to the Administrative Agent by leading
banks in the London interbank market at approximately 11:00 a.m., London time
(or as soon thereafter as possible), two Business Days prior to the commencement
of such Interest Period.
"Inactive Subsidiaries" means Subsidiaries of the Company
which are not actively engaged in the conduct of business and whose assets
and/or Liabilities are not material to the financial condition of the Company
and its Subsidiaries taken as a whole.
"Index Debt" means the Company's senior, unsecured, non-credit
enhanced Funded Debt.
"Inducement Agreement" means, collectively, the letter
agreement dated August 23, 1993 among the Company, PSI Funding, Inc. and FST and
the letter agreement dated April 5, 1993 among the Company, TCB and Provident.
"Initial Borrowing Subsidiaries" has the meaning specified in
the introduction to this Agreement.
"Intangibles" has the meaning normally ascribed thereto in
accordance with GAAP and shall include (a) excess cost over fair market value of
tangible assets acquired, (b) patents and patent rights, (c) trademarks, service
marks and trade names, (d) copyrights and (e) goodwill.
"Interest Payment Date" means (a) with respect to any
Eurocurrency Loan or ABR Loan, the last day of the Interest Period applicable
thereto and, in addition, the date on which such Loan is repaid or prepaid and,
in the case of a Eurocurrency Loan with an Interest Period of 6 months, the day
that would have been the Interest Payment Date for such Loan had an Interest
Period of 3 months been applicable to such Loan, (b) in the case of a Fixed Rate
Loan, the last day of the Interest Period applicable thereto and (c) in the case
of a Foreign Currency Revolving Loan (other than a Eurocurrency Loan), such days
as shall be specified in the applicable Foreign Currency Addendum.
"Interest Period" means:
(a) with respect to any Borrowing that is a Committed
Borrowing or Foreign Currency Revolving Borrowing:
(i) If such Borrowing is a Eurodollar Committed
Borrowing, the period commencing on the Borrowing 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 (A) 14 days thereafter (subject to market
availability) or (B) on the
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numerically corresponding day (or if there is no corresponding
day, the last day) in the calendar month that is one, two,
three or six months thereafter, as a Borrower may elect;
(ii) If such Borrowing is an ABR Borrowing, the
period commencing on the Borrowing Date of such Borrowing and
ending on the earlier of (A) the next succeeding March 31,
June 30, September 30 or December 31, and (B) the Maturity
Date;
(iii) If such Borrowing is a Foreign Currency
Revolving Borrowing (other than a Eurocurrency Foreign
Currency Borrowing), such periods as shall be specified in the
applicable Foreign Currency Addendum; and
(iv) If such Borrowing is a Eurocurrency Foreign
Currency Borrowing, the period commencing on the Borrowing
Date of such Borrowing and ending on the numerically
corresponding day (or if there is no corresponding day, the
last day) in the calendar month that is one, two, three or six
months thereafter, as a Borrower may elect; or
(b) with respect to any Competitive Borrowing:
(i) If such Competitive Borrowing is a Fixed Rate
Borrowing, the period commencing on the Borrowing Date of such
Borrowing and ending on the date specified in the Competitive
Bid in which the offer to make such Fixed Rate Borrowing was
extended; provided, however, that each such period shall have
a duration of not less than seven calendar days nor more than
180 days; and
(ii) If such Competitive Borrowing is a Eurocurrency
Borrowing, the period commencing on the Borrowing Date of such
Borrowing and ending on the numerically corresponding date (or
if there is no corresponding date, the last day ) in the
calendar month that is one, two, three or six months
thereafter, as a Borrower may elect.
Notwithstanding the foregoing (i) if any Interest Period would end on a
day which shall not be a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, with respect to
Eurocurrency Loans only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day and (ii) no Interest Period may
be selected for any Borrowing that ends later than the Maturity Date.
Interest shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.
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"Judgment Currency" has the meaning specified in Section 9.17.
"Letter of Credit Obligations" means, when used with respect
to any Person, the contingent obligations of such Person in respect of Letters
of Credit.
"Letters of Credit" means, as to any Person, letters of credit
issued for the account of such Person other than letters of credit issued to pay
the purchase price of goods or services acquired in the ordinary course of
business by such Person or any other Person.
"Liabilities" of any Person has the meaning normally ascribed
thereto in accordance with GAAP and shall include (a) Capitalized Lease
Obligations of such Person or any of its Subsidiaries, (b) the interests of
minority shareholders in Consolidated Subsidiaries of such Person, (c)
indebtedness secured by Liens against any property of such Person or any of its
Subsidiaries whether or not such Person or such Subsidiary is liable for the
payment thereof, (d) subordinated debt and (e) deferred liabilities.
"Lien" means, when used with respect to any Person, any
mortgage, lien, charge, pledge, security interest or encumbrance of any kind
(whether voluntary or involuntary and whether imposed or created by operation of
law or otherwise) upon, or pledge of, any of its property or assets, whether now
owned or hereafter acquired, or any lease intended as security, any conditional
sale agreement, or any other title retention agreement.
"Loan" means a Competitive Loan, a Committed Loan, a
Eurocurrency Loan, a Fixed Rate Loan, an ABR Loan or a Foreign Currency Loan.
"Majority Banks" means, at any time, Banks holding at least
662/3% of the Total Commitment or (if either the Total Commitment has been
terminated or "Majority Banks" is being determined for purposes of Article VI)
Banks holding at least 662/3% of the then aggregate Dollar Equivalent of the
unpaid principal amount of the outstanding Loans.
"Margin" means, as to any Eurocurrency Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a decimal to no
more than four decimal places) to be added to or subtracted from the IBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Stock" has the meaning specified in Section 4.13.
"Material Subsidiary" means, with respect to any Person, each
Subsidiary of such Person that would be a "significant subsidiary" as such term
is defined in Regulation S-X promulgated pursuant to the Securities Exchange Act
of 1934 as amended to the Effective Date; provided, however, for purposes of
determining whether any Subsidiary is a "Material Subsidiary," the reference to
"10 percent" in clauses (1), (2) and (3) of the definition of "significant
subsidiary" contained in said Regulation S-X shall be a reference to 5 percent;
and further provided, however,
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notwithstanding the foregoing, when used with respect to the Company, each
Borrowing Subsidiary shall be a Material Subsidiary of the Company.
"Maturity Date" means June 27, 2002, or the earlier
termination in whole of the Total Commitment pursuant to Section 2.12 or Section
6.01.
"Maximum Permissible Rate" has the meaning specified in
Section 9.08.
"Moody's" means Moody's Investors Service.
"Multicurrency Addendum" means a Foreign Currency Addendum in
a form acceptable the Company, the Administrative Agent, the Foreign Currency
Agent(s) named therein and the Foreign Currency Banks named therein, the
acceptability of such agreement to any such Person being conclusively evidenced
by its execution by such Person.
"NationsBank" means NationsBank, N.A., a national banking
association.
"Net Worth" means, in relation to the Company and its
Subsidiaries, Consolidated Assets of the Company less total consolidated
liabilities of the Company and its Consolidated Subsidiaries, as determined in
accordance with GAAP.
"OECD" means the Organization for Economic Cooperation and
Development (or any successor).
"Officer's Certificate" means, as to any Borrower, a
certificate signed in the name of such Borrower by its President, one of its
Vice Presidents, its Treasurer, its Secretary or one of its Assistant Treasurers
or Assistant Secretaries.
"Operating Lease Obligations" means obligations of a Person in
respect of any lease or agreement to lease other than Capitalized Lease
Obligations of such Person.
"Other Activities" has the meaning specified in Section 7.03.
"Other Financings" has the meaning specified in Section 7.03.
"Other Taxes" has the meaning specified in Section 2.20.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to all or any of its functions under ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock company,
trust, unincorporated association, joint venture or
FACILITY B
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other entity, or a foreign state or political subdivision thereof or any agency
of such state or subdivision.
"Plan" means any employee pension benefit plan maintained or
contributed to by the Company or any of its Subsidiaries or by any trade or
business (whether or not incorporated) under common control (as defined in
Section 4001(a)(14) or 4001(b) of ERISA) with the Company and insured by the
PBGC under Title IV of ERISA.
"Prime Rate" has the meaning specified in the definition of
the term Alternate Base Rate.
"Principal Office" means the office of the Administrative
Agent located at 270 Park Avenue, New York, New York 10017, or such other office
as the Administrative Agent may hereafter designate in writing as such to the
other parties hereto.
"Provident" means Provident Services, Inc., a Delaware
corporation.
"Register" has the meaning specified in Section 9.11(e).
"Regulation A" means Regulation A of the Board (respecting
loans to depository institutions), as the same is from time to time in effect,
and all official rulings and interpretations thereunder or thereof.
"Regulation D" means Regulation D of the Board (respecting
reserve requirements), as the same is from time to time in effect, and all
official rulings and interpretations thereunder or thereof.
"Regulation G" means Regulation G of the Board (respecting
margin credit extended by Persons other than banks or registered broker
dealers), as the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board (respecting
margin credit extended by banks), as the same is from time to time in effect,
and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board (respecting
borrowers who obtain margin credit), as the same is from time to time in effect,
and all official rulings and interpretations thereunder or thereof.
"Relevant Date" has the meaning specified in the definition of
the term GAAP.
"Reset Date" has the meaning specified in Section 1.04(c).
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"Revolving Credit Exposure" means, with respect to any Bank at
any time, the aggregate principal amount at such time of all outstanding
Committed Loans of such Bank plus the aggregate Dollar Equivalent of the
principal amount of all outstanding Foreign Currency Revolving Loans of such
Bank and each Affiliate, branch or agency of such Bank that is a Foreign
Currency Bank.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Subsidiary" means, with respect to any Person, any
corporation in which more than 50% of the stock of each class having ordinary
voting power shall, at the time as of which any determination is being made, be
owned of record and beneficially by such Person directly and/or through one or
more other Subsidiaries.
"Substantially-owned Subsidiary" means a Subsidiary of the
Company at least 80% of the outstanding capital stock of which, at the time any
determination is being made, is owned of record and beneficially by the Company
directly and/or through one or more other Subsidiaries.
"Support Agreements" means (a) the Support Agreement dated as
of September 14, 1988 between the Company and Provident, (b) the Australian
Support Agreement dated as of November 1, 1993 between the Company and Service
Corporation International Australia Pty Limited and (c) the three Support
Agreements dated respectively as of January 28, 1994, September 30, 1994 and
November 14, 1994, each between the Company and FST.
"Tangible Consolidated Assets" means, as to any Person,
Consolidated Assets less all Intangibles of such Person and its Consolidated
Subsidiaries.
"Taxes" has the meaning specified in Section 2.20.
"TCB" means Texas Commerce Bank National Association, a
national banking association.
"Total Capitalization" means, as of the date any determination
is made, the sum of Net Worth plus Consolidated Debt.
"Total Commitment" means, at any time, the aggregate amount of
the Banks' Commitments, as in effect at such time.
"Type" means, when used in respect of any Loan or Borrowing,
each of the following types of Loans or Borrowings as applicable: Eurocurrency
Loan or Eurocurrency Borrowing, (whether or not any such Loan or Borrowing is a
Foreign Currency Loan or Foreign Currency Borrowing) ABR Loan or ABR Borrowing
and Fixed Rate Loan or Fixed Rate Borrowing.
"United States" and "U.S." each means United States of
America.
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"Wholly-owned Subsidiary" means, as to any Person, a
Subsidiary, 100% of the stock of every class of which (except for directors'
qualifying shares) at the time as of which any determination is being made, is
owned of record and beneficially by such Person directly and/or through one or
more other Subsidiaries.
SECTION 1.02. Accounting Terms and Determinations. (a) Except
as otherwise provided in this Agreement, all computations and determinations as
to accounting or financial matters and all financial statements to be delivered
pursuant to this Agreement shall be made and prepared in accordance with GAAP
(including principles of consolidation where appropriate), and all accounting or
financial terms shall have the meanings ascribed to such terms by GAAP.
(b) If any change in GAAP after the date of this Agreement
shall be required to be applied to transactions then or thereafter in existence,
and a violation of or default under one or more provisions of this Agreement
shall have occurred or in the opinion of the Company would likely occur which
would not have occurred or be likely to occur if no change in accounting
principles had taken place:
(i) the parties agree that such violation or default shall not
constitute an Event of Default or a Default for a period of 60 days
from the date the Company notifies the Administrative Agent of the
application of this Section 1.02(b) identifying such change and the
provisions of this Agreement affected thereby;
(ii) the parties agree in such event to negotiate in good
faith an amendment of this Agreement which shall approximate to the
extent possible the economic effect of the original financial covenants
after taking into account such change in GAAP; and
(iii) if the parties are unable to agree on such an amendment
within such 60-day period, the Company shall have the option of (A)
prepaying the Loans (pursuant to Section 2.13 and the other applicable
provisions hereof) within 120 days from the date the Company notifies
the Administrative Agent of the application of this Section 1.02(b) or
(B) making all future calculations by application of GAAP applied on a
basis consistent with those in effect immediately prior to such change
in GAAP. If the Company does not exercise either such option within
said period by written notice to the Administrative Agent, then as used
in this Agreement, "GAAP" shall mean generally accepted accounting
principles in effect at the Relevant Date.
(c) If any change in GAAP after the date of this Agreement
shall be required to be applied to transactions or conditions then or thereafter
in existence, and the Administrative Agent shall assert that the effect of such
change is or shall likely be to distort materially the effect of any of the
definitions of financial terms in Article I or any of the financial covenants of
the Company in Article V (the "Financial Provisions"), so that the intended
economic effect of any of the Financial Provisions will not in fact be
accomplished:
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(i) the Administrative Agent shall notify the Company of such
assertion, specifying the change in GAAP which is objected to, and
until otherwise determined as provided below, the specified change in
GAAP shall not be made by the Company in its financial statements for
the purpose of applying the Financial Provisions; and
(ii) the parties shall follow the procedures set forth in
paragraph (ii) and the first sentence of paragraph (iii) of subsection
(b) of this Section 1.02. If the parties are unable to agree on an
amendment as provided in said paragraph (ii) and if the Company does
not exercise the option set forth in the first sentence of said
paragraph (iii) within the specified period, then as used in this
Agreement "GAAP" shall mean generally accepted accounting principles in
effect at the Relevant Date, except that the specified change in GAAP
which is objected to by the Administrative Agent shall not be made in
applying the Financial Provisions.
SECTION 1.03. Interpretation. (a) In this Agreement, unless a
clear contrary intention appears:
(i) the singular number includes the plural number and vice
versa;
(ii) reference to any gender includes each other gender;
(iii) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision;
(iv) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually,
provided that nothing in this clause (iv) is intended to authorize any
assignment not otherwise permitted by this Agreement;
(v) reference to any agreement, document or instrument,
including this Agreement, means such agreement, document or instrument
as amended, supplemented or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms hereof;
(vi) unless the context indicates otherwise, reference to any
Article, Section, Schedule or Exhibit means such Article or Section
hereof or such Schedule or Exhibit hereto;
(vii) the word "including" (and with correlative meaning
"include") means including, without limiting the generality of any
description preceding such term;
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(viii) with respect to the determination of any period of
time, the word "from" means "from and including" and the word "to"
means "to but excluding"; and
(ix) reference to any law means such as amended, modified,
codified or reenacted, in whole or in part, and in effect from time to
time.
(b) The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
(c) No provision of this Agreement shall be interpreted or
construed against any Person solely because that Person or its legal
representative drafted such provision.
SECTION 1.04. Certain Calculations. (a) Not later than 2:00
p.m., New York City time, on each Calculation Date, the Administrative Agent
shall (i) determine the Exchange Rate as of such Calculation Date with respect
to each Foreign Currency covered by a Foreign Currency Addendum and each Foreign
Currency in which any outstanding Competitive Loan is denominated and (ii) give
notice thereof to the Banks, the Company and the relevant Borrower Subsidiaries.
The Exchange Rates so determined shall become effective on the first Business
Day immediately following the relevant Calculation Date (a "Reset Date") and
shall remain effective until the next succeeding Reset Date.
(b) Not later than 6:00 p.m., New York City time, on each
Reset Date and each Borrowing Date, the Administrative Agent shall (i) determine
the Dollar Equivalent of the Foreign Currency Revolving Loans then outstanding
(after giving effect to any Foreign Currency Loans to be made or repaid on such
date) and of each Competitive Loan denominated in a Foreign Currency and (ii)
notify the Banks, the Company and the relevant Borrowing Subsidiaries of the
results of such determination.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Bank agrees, severally and not jointly, to make Committed Loans to the
Borrowers, at any time and from time to time on and after the Effective Date and
until the Maturity Date. Each Bank's Commitment, as in effect on the Execution
Date, is set forth opposite its name on the signature page hereto for such Bank.
Such Commitments may be terminated or reduced from time to time pursuant to
Section 2.12.
(b) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth and in the applicable Foreign
Currency Addendum, each Foreign Currency Bank agrees, severally and not jointly,
to make Foreign Currency Revolving Loans to the
FACILITY B
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Borrowers, at any time and from time to time on and after the execution of the
applicable Foreign Currency Addendum and until the Maturity Date.
(c) Notwithstanding anything to the contrary contained in this
Agreement, in no event may Committed Loans or Foreign Currency Revolving Loans
be borrowed under this Article II if, after giving effect thereto (and to any
concurrent repayment or prepayment of Loans), (i) the sum of the Aggregate
Revolving Credit Exposure and the Aggregate Competitive Loan Exposure would
exceed the Total Commitment then in effect, (ii) the Revolving Credit Exposure
of any Bank would exceed such Bank's Commitment, (iii) the Dollar Equivalent of
the aggregate principal amount of outstanding Foreign Currency Revolving Loans
denominated in a specified Foreign Currency or currencies would exceed the
applicable Foreign Currency Facility Maximum Borrowing Amount or (iv) the Dollar
Equivalent of the aggregate principal amount of outstanding Foreign Currency
Loans would exceed $500,000,000.
(d) Within the foregoing limits and subject to the terms,
conditions and limitations set forth herein, the Borrowers may borrow, pay or
prepay and reborrow hereunder, on and after the Effective Date and prior to the
Maturity Date. The respective commitments of the Foreign Currency Banks Parties
to the Australian Addendum and the Canadian Addendum to make Foreign Currency
Loans thereunder are set forth in those Foreign Currency Addenda. The
commitments of the Banks (or their Affiliates) to make Foreign Currency Loans
pursuant to Foreign Currency Addenda in Spanish pesetas, Italian lira, Swiss
francs, Belgium francs and in other Foreign Currencies are set forth on Exhibit
2.01.
SECTION 2.02. Loans. (a) Each Committed Loan shall be made as
part of a Borrowing consisting of Loans made by the Banks ratably in accordance
with their Available Commitments; provided, however, that the failure of any
Bank to make any Committed Loan shall not in itself relieve any other Bank of
its obligation to lend hereunder (it being understood, however, that no Bank
shall be responsible for the failure of any other Bank to make any Loan required
to be made by such other Bank). Each Foreign Currency Revolving Loan shall be
made as part of a Borrowing consisting of Loans made by the Foreign Currency
Banks parties to a Foreign Currency Addendum ratably in accordance with the
applicable Foreign Currency Bank Maximum Borrowing Amounts under such Foreign
Currency Addendum; provided, however, that the failure of any Foreign Currency
Bank to make any Foreign Currency Revolving Loan shall not in itself relieve any
other Foreign Currency Bank of its obligation to lend under such Foreign
Currency Addendum (it being understood, however, that no Foreign Currency Bank
shall be responsible for the failure of any other Foreign Currency Bank to make
any Foreign Currency Revolving Loan required to be made by such other Foreign
Currency Bank). Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 2.03. The Loans comprising any Borrowing shall
be (i) in the case of Competitive Loans, in an aggregate principal amount which
is an integral multiple of $1,000,000 or 100,000 units of the applicable Foreign
Currency, as the case may be, and not less than $5,000,000, or the Foreign
Currency Equivalent thereof, subject to the proviso at the end of Section
2.03(d) and to Section 2.03(j), (ii) in the case of Committed Loans, in an
aggregate principal
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amount which is an integral multiple of $1,000,000 and not less than $5,000,000
(or an aggregate principal amount equal to the remaining balance of the
Available Commitments) and (iii) in the case of Foreign Currency Revolving
Loans, in an aggregate principal amount which is not less than the Foreign
Currency Equivalent of $5,000,000. All Committed Loans made pursuant to this
Article II shall be in Dollars. Subject to Section 2.11 and Section 2.15,
Competitive Loans made pursuant to this Article II shall be in Dollars or any
Foreign Currency.
(b) Each Competitive Borrowing shall be comprised entirely of
Eurocurrency Competitive Loans or Fixed Rate Loans, and each Committed Borrowing
shall be comprised entirely of Eurodollar Committed Loans or ABR Loans, as a
Borrower may request pursuant to Section 2.03 or 2.04, as applicable. Each Bank
may at its option make any Eurocurrency Loan or Foreign Currency Loan by causing
its Applicable Lending Office to make such Loan; provided that any exercise of
such option shall not affect the obligation of any Borrower to repay such Loan
in accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that no Borrower shall
be entitled to request any Borrowing which, if made, would result in an
aggregate of more than ten separate Committed Loans of any Bank to the Borrowers
being outstanding hereunder at any one time. For purposes of the foregoing,
Loans having different Interest Periods, regardless of whether they commence on
the same date, shall be considered separate Loans.
(c) Subject to Section 2.03(j), Section 2.04(b), Section 2.05
and, in the case of any Foreign Currency Revolving Loan, to any alternative
procedures set forth in the applicable Foreign Currency Addendum, each Bank
shall make each Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds to the Administrative Agent in New
York City, not later than 12:30 p.m., New York City time, and the Administrative
Agent shall by 3:00 p.m., New York City time, credit the amounts so received to
the general deposit account of the Company with the Administrative Agent or, if
a Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Banks. Competitive Loans shall be made by the Bank or Banks whose
Competitive Bids therefor are accepted pursuant to Section 2.03 in the amounts
so accepted and Committed Loans and Foreign Currency Revolving Loans shall be
made by the Banks, or the Banks party to the applicable Foreign Currency
Addendum, as the case may be, pro rata in accordance with Section 2.17. Unless
the Administrative Agent shall have received notice from a Bank prior to the
date of any Borrowing that such Bank will not make available to the
Administrative Agent such Bank's portion of such Borrowing, the Administrative
Agent may assume that such Bank has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with this
Section 2.02(c) and the Administrative Agent may, in reliance upon such
assumption, make available to the requesting Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have made
such portion available to the Administrative Agent, such Bank and the requesting
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent
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at (i) in the case of such Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Bank, the
Federal Funds Effective Rate. If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute such Bank's Loan
as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request any Borrowing pursuant to Section 2.03 or
Section 2.04 if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Competitive Bid Procedure. (a) In order to
request Competitive Bids, a Borrower shall hand deliver or send by facsimile
transmission to the Administrative Agent a duly completed Competitive Bid
Request, to be received by the Administrative Agent (i) in the case of a
Eurocurrency Competitive Borrowing, not later than 10:00 a.m., New York City
time, five Business Days before the Borrowing Date specified for a proposed
Competitive Borrowing, and (ii) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before the Borrowing Date
specified for a proposed Competitive Borrowing. No Committed Loan shall be
requested in or made pursuant to a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit 2.03(A) may
be rejected at the Administrative Agent's sole discretion (to the extent
permitted by law), and the Administrative Agent shall promptly notify the
Borrower requesting such Competitive Bid of such rejection by facsimile
transmission. Each Competitive Bid Request shall in each case refer to this
Agreement and specify (x) whether the Competitive Borrowing then being requested
is to be a Eurocurrency Competitive Borrowing or a Fixed Rate Borrowing, (y) the
Borrowing Date of such Competitive Borrowing (which shall be a Business Day) and
the currency and the aggregate principal amount thereof (which shall be in a
minimum principal amount of $5,000,000 or the Foreign Currency Equivalent of
such amount and in an integral multiple of $1,000,000, or 100,000 units of the
applicable Foreign Currency, as the case may be), and (z) the Interest Period
with respect thereto. Promptly after its receipt of a Competitive Bid Request
that is not rejected as aforesaid, the Administrative Agent shall invite by
facsimile transmission (in substantially the form set forth in Exhibit 2.03(B))
the Banks to bid, on the terms and conditions of this Agreement, to make
Competitive Loans pursuant to such Competitive Bid Request. Notwithstanding the
foregoing, the Administrative Agent shall have no obligation to invite any Bank
to make a Competitive Bid pursuant to this Section 2.02(a) until such Bank has
delivered a properly completed Administrative Questionnaire to the
Administrative Agent.
(b) On and after the Effective Date, each Bank may, in its
sole discretion, make one or more Competitive Bids responsive to each
Competitive Bid Request of a Borrower. Each Competitive Bid by a Bank must be
received by the Administrative Agent via facsimile transmission, in the form of
Exhibit 2.03(C), (i) in the case of a Eurocurrency Competitive Borrowing, not
later than 2:00 p.m., New York City time, four Business Days before the
Borrowing Date specified for a proposed Competitive
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Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than 10:00
a.m., New York City time, on the Borrowing Date specified for a proposed
Competitive Borrowing. Competitive Bids that do not conform substantially to the
format of Exhibit 2.03(C) may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower requesting such
Competitive Bid, and the Administrative Agent shall notify the applicable Bank
of such rejection as soon as practicable. Each Competitive Bid shall refer to
this Agreement and (x) specify the principal amount (which shall be in a minimum
principal amount of $5,000,000 or the Foreign Currency Equivalent of such amount
and in an integral multiple of $1,000,000 or 100,000 units of the applicable
Foreign Currency, as the case may be, and which may equal the entire aggregate
principal amount of the Competitive Borrowing requested by the Borrower
requesting such Competitive Bid, irrespective of such Bank's Commitment) of the
Competitive Loan that the applicable Bank is willing to make to such Borrower,
(y) specify the Competitive Bid Rate or Rates at which such Bank is prepared to
make the Competitive Loan or Loans and (z) confirm the Interest Period with
respect thereto specified by such Borrower in its Competitive Bid Request. If
any Bank shall elect not to make a Competitive Bid, such Bank shall so notify
the Administrative Agent by facsimile transmission (A) in the case of
Eurocurrency Competitive Loans, not later than 2:00 p.m., New York City time,
four Business Days before the Borrowing Date specified for a proposed
Competitive Borrowing, and (B) in the case of Fixed Rate Loans, not later than
10:00 a.m., New York City time, on the Borrowing Date specified for a proposed
Competitive Borrowing; provided, however, that failure by any Bank to give such
notice shall not cause such Bank to be obligated to make any Competitive Loan as
part of such Competitive Borrowing or subject such Bank to any other liability
hereunder. A Competitive Bid submitted by a Bank pursuant to this paragraph (b)
shall be irrevocable.
(c) The Administrative Agent shall promptly notify the
Borrower requesting such Competitive Bid by facsimile transmission of all the
Competitive Bids made, the Competitive Bid Rate and the maximum principal amount
of each Competitive Loan in respect of which a Competitive Bid was made and the
identity of the Bank that made each such Competitive Bid. The Administrative
Agent shall send a copy of all Competitive Bids to such Borrower for its records
as soon as practicable after completion of the bidding process set forth in this
Section 2.03.
(d) A Borrower may in its sole and absolute discretion,
subject only to the provisions of this Section 2.03(d), accept or reject any
Competitive Bid referred to in Section 2.03(c). Such Borrower shall notify the
Administrative Agent by telephone, confirmed by facsimile transmission, whether
and to what extent it has decided to accept or reject any or all of the
Competitive Bids referred to in Section 2.03(c), (i) in the case of a
Eurocurrency Competitive Borrowing, not later than 10:00 a.m., New York City
time, three Business Days before the Borrowing Date specified for a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than noon, New York City time, on the Borrowing Date specified for a proposed
Competitive Borrowing, provided, however, (A) the failure by a Borrower to
accept or reject any Competitive Bid referred to in Section 2.03(c) shall be
deemed to be a rejection of such Competitive Bid, (B) no Borrower shall accept a
Competitive Bid made at a particular Competitive Bid Rate if such Borrower has
decided to reject a Competitive Bid made at a lower Competitive Bid Rate, (C)
the aggregate amount of the Competitive Bids accepted by a Borrower shall not
exceed the
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principal amount specified in the related Competitive Bid Request, (D) if a
Borrower shall accept a Competitive Bid or Bids made at a particular Competitive
Bid Rate but the amount of such Competitive Bid or Bids shall cause the total
amount of Competitive Bids to be accepted by such Borrower to exceed the amount
specified in the Competitive Bid Request, then such Borrower shall accept a
portion of such Competitive Bid or Bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted with respect to such Competitive Bid Request, which
acceptance, in the case of multiple Competitive Bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid at such Competitive Bid Rate, and (E) except pursuant to clause
(D) above, no Competitive Bid shall be accepted for a Competitive Loan unless
such Competitive Loan is in a minimum principal amount of $5,000,000 because of
the provisions of clause (D) above, or the Foreign Currency Equivalent of such
amount and an integral multiple of $1,000,000 or 100,000 units of the applicable
Foreign Currency, as the case may be; provided further, however, that if a
Competitive Loan must be in an amount less than $5,000,000, such Competitive
Loan may be for a minimum of $1,000,000 or 100,000 units of the applicable
Foreign Currency, as the case may be, or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances or portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (D) the
amounts shall be rounded to integral multiples of $1,000,000 or 100,000 units of
the applicable Foreign Currency, as the case may be, in a manner which shall be
in the discretion of such Borrower. A notice given by a Borrower pursuant to
this Section 2.03(d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each Bank
making a Competitive Bid whether or not its Competitive Bid or corresponding
Competitive Bids have been accepted (and if so, in what amount and at what
Competitive Bid Rate) by facsimile transmission sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its Competitive Bid has been accepted. After completing the notifications
referred to in the immediately preceding sentence, the Administrative Agent
shall notify each Bank of the aggregate principal amount of all Competitive Bids
accepted.
(f) The Administrative Agent shall notify each Bank of (i) the
IBO Rate applicable to any Eurocurrency Competitive Loan to be made by such Bank
pursuant to a Competitive Bid that has been accepted by a Borrower pursuant to
Section 2.03(d), and (ii) the sum of the applicable IBO Rate plus the Margin bid
by such Bank.
(g) A Competitive Bid Request shall not be made within five
Business Days of the date after the date of any previous Competitive Bid
Request, unless the Company and the Administrative Agent shall mutually agree
otherwise and notice of such agreement shall have been given to the Banks.
(h) If the Administrative Agent or any Affiliate of the
Administrative Agent shall at any time be a Bank with a Commitment hereunder and
shall elect to submit a Competitive Bid
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in its capacity as a Bank, it shall submit such Competitive Bid directly to the
Borrower requesting such Competitive Bid one quarter of an hour earlier than the
latest time at which the other Banks are required to submit their Competitive
Bids to the Administrative Agent pursuant to paragraph (b) above.
(i) All notices required by this Section 2.03 shall be given
in accordance with Section 9.02.
(j) Competitive Loans may be made in Foreign Currencies to the
extent requested in any Competitive Bid Request. Competitive Bids denominated in
a Foreign Currency shall not be made pursuant to a Foreign Currency Addendum.
With respect to any such Competitive Loans, the Company, and the Administrative
Agent may from time to time agree to modifications of the procedures set forth
in Section 2.02(b), Section 2.02(c) and this Section 2.03 (other than Section
2.03(h)) applicable thereto, and such modifications shall be set forth in the
applicable Competitive Bid Request.
SECTION 2.04. Committed and Foreign Currency Revolving
Borrowing Procedure. (a) In order to effect a Committed Borrowing, a Borrower
shall give written notice (or telephone notice promptly confirmed in writing) to
the Administrative Agent, substantially in the form of Exhibit 2.04 (a
"Committed Borrowing Request"), (i) in the case of a Eurodollar Committed
Borrowing, not later than noon, New York City time, three Business Days before
the Borrowing Date specified for such proposed Committed Borrowing, and (ii) in
the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, on
the Borrowing Date specified for such proposed Committed Borrowing. No Fixed
Rate Loan or Eurocurrency Competitive Loan shall be requested or made pursuant
to a Committed Borrowing Request. Such Committed Borrowing Request shall be
irrevocable and shall in each case refer to this Agreement and specify (x)
whether the Borrowing then being requested is to be a Eurodollar Committed
Borrowing or an ABR Borrowing, (y) the Borrowing Date of such Borrowing (which
shall be a Business Day) and the aggregate amount thereof (which shall not be
less than $5,000,000 and shall be an integral multiple of $1,000,000) and (z)
the Interest Period with respect thereto. If no election as to the Type of
Committed Borrowing is specified in any such notice, then the requested
Committed Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any Eurodollar Committed Borrowing is specified in any such Committed
Borrowing Request, then the Borrower making such request shall be deemed to have
selected an Interest Period of one month's duration. If a Borrower shall not
have given notice in accordance with this Section 2.04 of its election to
refinance a Committed Borrowing prior to the end of the Interest Period in
effect for such Borrowing, then such Borrower shall (unless such Borrowing is
repaid at the end of such Interest Period) be deemed to have given notice of an
election to refinance such Borrowing with an ABR Borrowing. The Administrative
Agent shall promptly advise the Banks of any Committed Borrowing Request given
pursuant to this Section 2.04 and of each Bank's portion of the requested
Committed Borrowing by facsimile transmission.
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(b) In order to effect a Foreign Currency Revolving Borrowing,
a Borrower shall give the notice required under the relevant Foreign Currency
Addendum and shall promptly deliver a copy of such notice to the Administrative
Agent.
SECTION 2.05. Refinancings. Each Borrower may refinance all or
any part of any of its Borrowings with a Borrowing of the same or a different
Type made pursuant to Section 2.03 or Section 2.04, subject to the conditions
and limitations set forth herein and elsewhere in this Agreement, including
refinancings of Competitive Borrowings with Committed Borrowings and of
Committed Borrowings with Competitive Borrowings. Any Borrowing or part thereof
so refinanced shall be deemed to be repaid in accordance with Section 2.08 with
the proceeds of a new Borrowing hereunder and the proceeds of the new Borrowing,
to the extent they do not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the Banks to the Administrative Agent or by the
Administrative Agent to the Borrower to which such Borrowing has been made
pursuant to Section 2.02(c); provided, however, that (a) if the principal amount
extended by a Bank in a refinancing is greater than the principal amount, if
any, extended by such Bank in the Borrowing being refinanced, then such Bank
shall pay such difference to the Administrative Agent for distribution to the
Banks described in clause (b) below, (b) if the principal amount extended by a
Bank in the Borrowing being refinanced is greater than the principal amount, if
any, being extended by such Bank in the refinancing, the Administrative Agent
shall return the difference to such Bank out of amounts received pursuant to
clause (a) above, (c) to the extent any Bank fails to pay the Administrative
Agent amounts due from it pursuant to clause (a) above, any Borrowing or portion
thereof being refinanced shall not be deemed repaid in accordance with Section
2.08 to the extent of such failure and such Borrower shall pay such amount to
the Administrative Agent pursuant to Section 2.08 and (d) to the extent such
Borrower fails to pay to the Administrative Agent any amounts due in accordance
with Section 2.08 as a result of the failure of a Bank to pay the Administrative
Agent any amounts due as described in clause (c) above, the portion of any
refinanced Borrowing deemed not repaid shall be deemed to be outstanding solely
to the Bank which has failed to pay the Administrative Agent amounts due from it
pursuant to clause (a) above to the full extent of such Bank's portion of such
refinanced Loan.
SECTION 2.06. Conversion and Continuation of Committed
Borrowings. Each Borrower shall have the right at any time upon prior
irrevocable notice to the Administrative Agent (a) not later than 8:30 a.m., New
York City time, one Business Day prior to conversion, to convert any Eurodollar
Committed Borrowing into an ABR Borrowing, (b) not later than noon, New York
City time, three Business Days prior to conversion or continuation, to convert
any ABR Borrowing into a Eurodollar Committed Borrowing or to continue any
Eurodollar Committed Borrowing as a Eurodollar Committed Borrowing for an
additional Interest Period and (c) not later than 11:00 a.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Committed Borrowing to another permissible
Interest Period, subject in each case to the following:
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(i) each conversion or continuation shall be made pro rata
among the Banks in accordance with the respective principal amounts of
the Loans comprising the converted or continued Committed Borrowing and
no Borrowing may be converted into or continued as a Borrowing in a
different currency;
(ii) if less than all the outstanding principal amount of any
Committed Borrowing shall be converted or continued, the aggregate
principal amount of such Committed Borrowing converted or continued
shall be an integral multiple of $1,000,000 or 100,000 units of the
applicable Foreign Currency and not less than $5,000,000 or the Foreign
Currency Equivalent of such amount;
(iii) if any Eurodollar Committed Borrowing is converted at a
time other than the end of the Interest Period applicable thereto, such
Borrower shall pay, upon demand, any amounts due to the Banks pursuant
to Section 2.16;
(iv) any portion of a Committed Borrowing maturing or required
to be repaid in less than one month (or 14 days, if such an Interest
Period is available) may not be converted into or continued as a
Eurodollar Committed Borrowing;
(v) any portion of a Committed Borrowing which cannot be
continued as or converted into a Eurodollar Committed Borrowing by
reason of clause (iv) above shall be automatically converted into or
continued as an ABR Borrowing at the end of the Interest Period in
effect for such Borrowing; and
(vi) no Interest Period may be selected for any Eurodollar
Committed Borrowing that would end later than the Maturity Date.
Each notice pursuant to this Section 2.06 shall be irrevocable and shall refer
to this Agreement and specify (w) the identity and amount of the Committed
Borrowing that a Borrower requests be converted or continued, (x) whether such
Committed Borrowing is to be converted to or continued as a Eurodollar Committed
Borrowing or an ABR Borrowing, (y) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (z) if such
Committed Borrowing is to be converted to or continued as a Eurodollar Committed
Borrowing, the Interest Period with respect thereto. If no Interest Period is
specified in any such notice with respect to any conversion to or continuation
as a Eurodollar Committed Borrowing, a Borrower shall be deemed to have selected
an Interest Period of one month's duration. The Administrative Agent shall
promptly advise the other Banks of any notice given pursuant to this Section
2.06 and of each Bank's portion of any converted or continued Committed
Borrowing. If a Borrower shall not have given notice in accordance with this
Section 2.06 to continue any Committed Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.06 to convert such Committed Borrowing), such Committed Borrowing
shall, at the end of the Interest
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Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be converted into or continued as an ABR Borrowing.
SECTION 2.07. Fees. (a) The Company agrees to pay to each
Bank, through the Administrative Agent, (i) on each March 31, June 30, September
30 and December 31 from the Execution Date to the date on which the Commitment
of such Bank has been terminated and (ii) on the Maturity Date and on any other
date on which the Commitment of such Bank has been terminated, facility fees
(such facility fees being the "Facility Fees"), in immediately available funds,
equal to the Applicable Fee Percentage of the amount of the Commitment of such
Bank from time to time outstanding, whether used, deemed used or unused, during
the preceding quarter (or shorter period commencing with the Execution Date
and/or ending with the Maturity Date).
(b) All Facility Fees shall be computed by the Administrative
Agent on the basis of the actual number of days elapsed in a year of 360 days,
and such computations, made in good faith, shall create a rebuttable presumption
that they are accurate. The Facility Fees due to each Bank shall commence to
accrue on the Execution Date and shall cease to accrue on the earlier of the
Maturity Date and the termination of the Commitment of such Bank as provided
herein.
(c) The Facility Fees due under this Section 2.07 shall be
paid on the date due, in immediately available funds, to the Administrative
Agent for distribution among the Banks.
(d) The Company agrees to pay to the Administrative Agent the
fees as provided in the Agent's Fee Letter.
(e) Notwithstanding the foregoing, in no event shall any Bank
be permitted to receive any compensation hereunder constituting interest in
excess of the Highest Lawful Rate.
SECTION 2.08. Repayment of Loans. (a) Each Borrower agrees to
pay the outstanding principal balance of each Loan (i) in the case of a
Competitive Loan, on the last day of the Interest Period applicable to such Loan
and on the Maturity Date, and (ii) in the case of a Committed Loan or Foreign
Currency Revolving Loan, on the Maturity Date unless another date is specified
in the Foreign Currency Addendum relating to such Foreign Currency Revolving
Loan. Each Loan shall bear interest from the date of the Borrowing of which such
Loan is a part on the outstanding principal balance thereof as set forth in
Section 2.09.
(b) Each Bank shall, and is hereby authorized by each Borrower
to make in its internal records relating to each Loan an appropriate notation
evidencing the date, amount and the Type of each Loan of such Bank to such
Borrower, the rate of interest applicable to such Loan and the Foreign Currency,
if any, in which such Loan is made, and each payment or prepayment of principal
of and interest on such Loan. The aggregate unpaid principal amount so recorded
shall be presumptive evidence of the principal amount owing by such Borrower to
such Bank in respect of such Loan. The failure of any Bank to make such a
notation or any error therein shall not in any
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manner affect the obligation of such Borrower to repay the Loans made by such
Bank in accordance with the terms hereof.
SECTION 2.09. Interest on Loans. (a) Subject to the provisions
of Section 2.09(d) and Section 2.10, the Loans comprising each Eurocurrency
Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 360 days) at a rate per annum equal to (i) in the
case of each Eurodollar Committed Loan, the lesser of (A) the IBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Differential
from time to time in effect and (B) the Highest Lawful Rate, (ii) in the case of
each Eurocurrency Competitive Loan, the lesser of (A) the IBO Rate for the
Interest Period in effect for such Borrowing plus the Margin offered by the Bank
making such Loan and accepted by a Borrower pursuant to Section 2.03 and (B) the
Highest Lawful Rate, (iii) in the case of each Foreign Currency Revolving Loan
that is a Eurocurrency Loan, the lesser of (A) the IBO Rate for the Interest
Period in effect for such Borrowing plus any spread specified in the applicable
Foreign Currency Addendum and (B) the Highest Lawful Rate and (iv) in the case
of each Foreign Currency Revolving Loan (other than a Eurocurrency Loan), such
rate as shall be specified in the applicable Foreign Currency Addendum.
(b) Subject to the provisions of Section 2.09(d) and Section
2.10, the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, if the Alternate Base Rate shall be based on the Prime Rate,
and a year of 360 days otherwise) at a rate per annum equal to the Alternate
Base Rate, but not in excess of the Highest Lawful Rate.
(c) Subject to the provisions of Section 2.10, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Bank making such Loan and accepted by a Borrower
pursuant to Section 2.03, but not in excess of the Highest Lawful Rate.
(d) Interest on each Loan shall be payable in arrears on each
Interest Payment Date applicable to such Loan except as otherwise provided in
this Agreement or in an applicable Foreign Currency Addendum. The applicable IBO
Rate or Alternate Base Rate for each Interest Period or day within an Interest
Period, as the case may be, shall be determined by the Administrative Agent
(which determination, made in good faith, shall create a rebuttable presumption
that the same is accurate). The Administrative Agent shall promptly advise the
Company and each Bank, as appropriate, of such determination.
SECTION 2.10. Interest on Overdue Amounts. If any Borrower
shall default in the payment of the principal of or interest on any Loan or any
other amount becoming due hereunder, whether at scheduled maturity by notice of
prepayment, acceleration or otherwise, such Borrower shall on demand from time
to time pay interest, to the extent permitted by law, on such defaulted amount
up to (but not including) the date of actual payment (after as well as before
judgment) at a rate per annum equal to the lesser of (a) the Alternate Base Rate
plus 2% per annum (if the Alternate
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Base Rate is based on the Prime Rate, computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be; if the
Alternate Base Rate is based on the Federal Funds Effective Rate, computed on
the basis of the actual number of days elapsed over a year of 360 days) and (b)
the Highest Lawful Rate, or in the case of Foreign Currency Revolving Loans such
other rate as may be specified in the related Foreign Currency Addendum.
SECTION 2.11. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurocurrency Borrowing, (a) the Administrative Agent
shall have determined that deposits in the principal amounts and currencies of
the Loans comprising such Borrowing are not generally available in the London
interbank market, or (b) the Majority Banks shall have determined (and notified
the Administrative Agent) that the rate at which such deposits are being offered
will not adequately and fairly reflect the cost to any Bank of making or
maintaining its Eurocurrency Loan during such Interest Period, the
Administrative Agent shall, as soon as practicable thereafter, give written
notice of such determination to the Borrowers and the Banks. In the event of any
such determination, any request by a Borrower for a Eurocurrency Loan shall,
until the circumstances giving rise to such notice no longer exist, be deemed to
be a request for an ABR Loan (if the requested Eurocurrency Loan was to be a
Dollar Loan or a Foreign Currency Revolving Loan pursuant to a Foreign Currency
Addendum in which no "Base Rate" is specified) or a request for a Foreign
Currency Loan bearing interest by reference to the "Base Rate" specified in the
applicable Foreign Currency Addendum (if the requested Eurocurrency Loan was to
be a Foreign Currency Revolving Loan pursuant to a Foreign Currency Addendum in
which a "Base Rate" is specified). Each such determination by the Administrative
Agent or the Majority Banks hereunder, made in good faith, shall create a
rebuttable presumption that the same is accurate.
SECTION 2.12. Termination and Reduction of Commitments. (a)
The Total Commitment shall be automatically terminated on the Maturity Date.
(b) Subject to Section 2.13(b), upon at least ten Business
Days' prior irrevocable written or facsimile notice to the Administrative Agent,
the Company may at any time in whole permanently terminate, or from time to time
in part permanently reduce, the Total Commitment; provided, however, that (i)
each partial reduction of the Total Commitment shall be in an integral multiple
of $1,000,000 and in a minimum principal amount of $25,000,000 and (ii) no such
termination or reduction shall be permitted if, after giving effect thereto and
to any repayments of the Loans made on the effective date thereof, (A) the sum
of the Aggregate Revolving Credit Exposure and the Aggregate Competitive Loan
Exposure would exceed the Total Commitment then in effect or (B) the Revolving
Credit Exposure of any Bank would exceed such Bank's Commitment. Such notice
shall specify the date and the amount of the termination or reduction of the
Total Commitment. The Administrative Agent shall promptly notify the Banks of
the amount of any such termination or reduction of the Total Commitment.
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(c) Except in the circumstances described in Section 2.14 or
Section 2.15, each reduction in the Total Commitment hereunder shall be made
ratably among the Banks in accordance with their respective Commitments. The
Company shall pay to the Administrative Agent for the account of the Banks, on
the date of each termination or reduction, the Facility Fees on the amount of
the Commitments so terminated or reduced, accrued through the date of such
termination or reduction.
SECTION 2.13. Prepayment. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Committed Borrowing or
Foreign Currency Revolving Borrowing, in whole or in part, upon written or
facsimile notice (or telephone notice promptly confirmed by written or facsimile
notice) to the Administrative Agent: (i) before 10:00 a.m., New York City time,
five Business Days prior to prepayment, in the case of Eurodollar Committed
Loans, (ii) before 10:00 a.m., New York City time, one Business Day prior to
prepayment, in the case of ABR Loans and (iii) in the case of Foreign Currency
Revolving Loans, such time as shall be specified in the applicable Foreign
Currency Addendum; provided, however, that each partial prepayment shall be in
an amount which is an integral multiple of $1,000,000 or 100,000 units of the
applicable Foreign Currency and not less than $10,000,000 (or the Foreign
Currency Equivalent thereof). No Borrower shall have the right to prepay any
Competitive Borrowing.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.12(b), the Borrowers shall pay or prepay so
much of the Committed Borrowings as shall be necessary in order that the
aggregate principal amount of the Competitive Loans and Committed Loans
outstanding will not exceed the Total Commitment, after giving effect to such
termination or reduction.
(c) Each notice of prepayment given by a Borrower shall
specify the prepayment date and the principal amount of each Borrowing (or
portion thereof) to be prepaid, shall be irrevocable and shall commit such
Borrower to prepay such Borrowing (or portion thereof) by the amount stated
therein on the date stated therein. All prepayments under this Section 2.13
shall be subject to Section 2.16 and Section 2.17 but otherwise without premium
or penalty. All prepayments under this Section 2.13 shall be accompanied by
accrued interest on the principal amount being prepaid to the date of
prepayment.
(d) If, on the last day of any Interest Period for any
Borrowing or Borrowings, the sum of the Aggregate Revolving Credit Exposure and
the Aggregate Competitive Loan Exposure exceeds the Total Commitment, the
applicable Borrower (or, if more than one, the applicable Borrower(s) designated
by the Company) shall, on such day, prepay such Borrowing(s) in an amount equal
to the lesser of (i) such excess and (ii) the aggregate amount of such
Borrowing(s).
(e) If, on the last day of any Interest Period for any
Borrowing, the Revolving Credit Exposure of any Bank in respect of a Loan
included in such Borrowing exceeds such Bank's Commitment, the applicable
Borrower shall, on such day, prepay such Borrowing in an amount equal
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to the lesser of (i) the amount necessary to eliminate such excess and (ii) the
amount of such Borrowing.
SECTION 2.14. Reserve Requirements; Change in Circumstances.
(a) It is understood that the cost to each Bank of making or maintaining any of
the Loans may fluctuate as a result of the applicability of, or changes in,
reserve requirements imposed by the Board, including reserve requirements under
Regulation D in connection with Eurocurrency Liabilities, and any other similar
reserve, liquid asset or other requirement established by any governmental
authority of the United States or of the jurisdiction of any Foreign Currency or
in which any subject Loans in such currency are made to which banks in such
jurisdiction are subject. Subject to Section 9.08, each Borrower agrees to pay
to each Bank, as provided in Section 2.14(d), at any time when such Bank shall
be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional interest on the
unpaid principal amount of each Eurocurrency Loan of such Bank from the date of
such Loan until such principal amount is paid in full, payable on each Interest
Payment Date for such Eurocurrency Loan, at an interest rate per annum equal at
all times during each Interest Period to the excess of (i) the rate obtained by
dividing the IBO Rate for such Interest Period by a percentage equal to 100%
minus the reserve percentage applicable during such Interest Period under
regulations issued from time to time by the Board (or if more than one such
percentage is so applicable, minus the daily average of such percentages for
those days in such Interest Period during which any such percentage shall be so
applicable) for determining the maximum requirement (including any emergency,
supplemental or other marginal reserve requirement) for such Bank with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities
over (ii) the IBO Rate for such Interest Period. It is understood by the parties
hereto that the rates of interest applicable to Eurocurrency Loans have been
determined on the assumption that no such reserve requirements exist or will
exist and that such rates do not reflect costs imposed on the Banks in
connection with such reserve requirements. It is agreed that for purposes of
this Section 2.14(a) the Eurocurrency Loans made hereunder shall be deemed to
constitute Eurocurrency Liabilities and to be subject to the reserve
requirements of Regulation D without benefit of or credit for proration,
exemptions or offsets which might otherwise be available to the Banks from time
to time under Regulation D.
(b) Notwithstanding any other provision herein, if after the
Execution Date the introduction of any applicable law or regulation or any
change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Bank with any
applicable guideline or request from any central bank or governmental authority
(whether or not having the force of law), including the implementation of the
European monetary unit (i) shall change the basis of taxation of payments to any
Bank of the principal of or interest on any Eurocurrency Loan, Fixed Rate Loan
or Foreign Currency Loan made by such Bank or any other fees or amounts payable
hereunder (other than (x) taxes imposed on the overall net income of such Bank
or its Applicable Lending Office by the jurisdiction in which such Bank or its
Applicable Lending Office has its principal office or by any political
subdivision or taxing authority therein (or any tax which is enacted or adopted
by such
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jurisdiction, political subdivision or taxing authority as a direct substitute
for any such taxes) or (y) any tax, assessment or other governmental charge that
would not have been imposed but for the failure of any Bank to comply with any
certification, information, documentation or other reporting requirement), (ii)
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, such Bank, or (iii) shall impose on such Bank or the London
interbank market any other condition affecting this Agreement or any
Eurocurrency Loan, Fixed Rate Loan or Foreign Currency Loan made by such Bank,
and the result of any of the foregoing shall be to increase the cost to such
Bank of maintaining its Commitment or of making or maintaining any Eurocurrency
Loan, Fixed Rate Loan or Foreign Currency Loan or to reduce the amount of any
sum received or receivable by such Bank hereunder (whether of principal,
interest or otherwise) in respect thereof by an amount deemed in good faith by
such Bank to be material, then each Borrower shall pay to the Administrative
Agent for the account of such Bank such additional amount or amounts with
respect to the Eurocurrency Loans, Fixed Rate Loans and Foreign Currency Loans
of such Borrower as will compensate such Bank for such increase or reduction to
such Bank upon demand by such Bank (through the Administrative Agent).
(c) If any Bank shall have determined in good faith that the
applicability of any law, rule, regulation or guideline adopted pursuant to or
arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards" or the adoption after the Execution
Date of any other law, rule, regulation or guideline regarding capital adequacy,
or any change in any of the foregoing 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 any lending office of such Bank) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's capital as a consequence of this
Agreement or the Loans made by such Bank pursuant hereto to a level below that
which such Bank could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, as provided in Section 2.14(d), each Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank for any such
increased capital requirement.
(d) Each Bank will notify the Borrowers through the
Administrative Agent of any event occurring after the date of this Agreement
which will entitle such Bank to compensation pursuant to this Section 2.14, as
promptly as practicable, and in any event within 90 days after it becomes aware
thereof and determines to request compensation. A certificate of a Bank setting
forth in reasonable detail (i) such amount or amounts as shall be necessary to
compensate such Bank (or participating banks or other entities pursuant to
Section 9.11) as specified in paragraph (a), (b) or (c) above, as the case may
be, and (ii) the calculation of such amount or amounts under clause (a)(i),
shall be delivered to the Borrowers (with a copy to the Administrative Agent)
and shall, to the extent
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permitted by law, be conclusive absent manifest error. The Borrowers shall pay
to the Administrative Agent for the account of such Bank the amount shown as due
on any such certificate within 10 days after its receipt of the same.
(e) Except as expressly provided in Section 2.14(d), failure
on the part of any Bank to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to any Interest Period or any other period shall not constitute a
waiver of such Bank's rights to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to such Interest Period or any other period; provided that no
Borrower shall be required to compensate a Bank pursuant to this Section 2.14
for any increased costs or reductions incurred more than 270 days prior to the
date that such Bank notifies such Borrower of the change in law giving rise to
such increased costs or reductions and of such Bank's intention to claim
compensation therefor; provided further that, if the change in law giving rise
to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect
thereof. The protection of this Section 2.14 shall be available to each Bank
regardless of any possible contention of invalidity or inapplicability of law,
regulation or condition which shall have been imposed.
(f) In the event any Bank shall seek compensation pursuant to
this Section 2.14, the Company may give notice to such Bank (with copies to the
Administrative Agent) that it wishes to seek one or more Eligible Assignees
(which may be one or more of the Banks) to assume the Commitment of such Bank
and to purchase its outstanding Loans. Each Bank requesting compensation
pursuant to this Section 2.14 agrees to sell its Commitment, Loans and interest
in this Agreement pursuant to Section 9.11(c) to any such Eligible Assignee for
an amount equal to the sum of the outstanding unpaid principal of and accrued
interest on such Loans plus all other fees and amounts (including any
compensation claimed by such Bank under this Section 2.14 or Section 2.16) due
such Bank hereunder calculated, in each case, to the date such Commitment, Loans
and interest are purchased, whereupon such Bank shall have no further Commitment
or other obligation to any Borrower hereunder.
(g) Without prejudice to the survival of any other obligations
of the Borrowers hereunder, the obligations of the Borrower under this Section
2.14 shall survive the termination of this Agreement and the payment or
assignment of the Loans.
(h) Notwithstanding anything in this Section 2.14 to the
contrary, in no event shall any Bank be permitted to take or receive any
compensation hereunder constituting interest in excess of the Highest Lawful
Rate.
SECTION 2.15. Change in Circumstances. (a) Notwithstanding any
other provision herein, if any change in any law or regulation or in the
interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any
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Bank or its Eurocurrency Lending Office to make or maintain any Eurocurrency
Loan or Foreign Currency Loan or to give effect to its obligations as
contemplated hereby, or shall limit the convertibility into Dollars of any
Foreign Currency (or make such conversion commercially impracticable), then, by
written notice to the Borrower and to the Administrative Agent, such Bank may:
(i) declare that Eurocurrency Loans or Loans in any affected
Foreign Currency, as applicable, will not thereafter be made by such
Bank hereunder, whereupon such Bank shall not submit a Competitive Bid
in response to a request for Eurocurrency Competitive Loans or
Competitive Loans in such Foreign Currency, as applicable, and any
request by a Borrower for a Eurodollar Committed Borrowing or Foreign
Currency Revolving Borrowing in such Foreign Currency, as applicable,
shall, as to such Bank only (unless such Borrower (x) shall have
withdrawn such request, in which case such request shall be of no force
and effect, or (y) shall have made a new request for a Borrowing of a
different Type in accordance with the terms hereof, which shall be
deemed to supersede such request for a Eurodollar Committed Borrowing),
be deemed a request for an ABR Loan in Dollars; and
(ii) require that all outstanding Eurocurrency Loans or Loans
in such Foreign Currency, as applicable, made by it be converted to ABR
Loans in Dollars in which event all such Loans shall be automatically
converted to ABR Loans in Dollars, as of the effective date of such
notice as provided in Section 2.15(b).
In the event any Bank shall exercise its rights under clause (i) or (ii) above
with respect to Eurocurrency Loans, all payments and prepayments of principal
which would otherwise have been applied to repay the Eurocurrency Loans that
would have been made by such Bank or the converted Eurocurrency Loans of such
Bank shall instead be applied to repay the ABR Loans made by such Bank or the
Banks, as the case may be, in lieu of, or resulting from the conversion of, such
Eurocurrency Loans. In the event any Foreign Currency Bank shall exercise its
rights under clause (i) or (ii) above with respect to Foreign Currency Loans,
all payments and prepayments in respect of such Foreign Currency Loans shall
thereafter be made in Dollars, converted at the then prevailing Exchange Rate.
(b) For purposes of this Section 2.15, a notice to any
Borrower (with a copy to the Administrative Agent) by any Bank pursuant to
Section 2.15(a) shall be effective as to each Eurocurrency Loan, if lawful, on
the last day of the Interest Period currently applicable to such Eurocurrency
Loan; in all other cases such notice shall be effective on the date of receipt
by the Borrower.
(c) In the event any Bank shall give a notice to any Borrower
pursuant to this Section 2.15, the Company may give notice to such Bank (with a
copy to the Administrative Agent) that it wishes to seek one or more Eligible
Assignees (which may be one or more of the Banks) to assume the Commitment of
such Bank and to purchase its outstanding Loans. Each Bank giving a
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notice to any Borrower pursuant to this Section 2.15 agrees to sell its
Commitment, Loans and interest in this Agreement pursuant to Section 9.11(c) to
any such Eligible Assignee for an amount equal to the sum of the outstanding
unpaid principal of and accrued interest on such Loans plus all other fees and
amounts (including any compensation claimed by such Bank under Section 2.14 or
Section 2.16) due such Bank hereunder calculated, in each case, to the date such
Commitment, Loans, interest and fees are purchased, whereupon such Bank shall
have no further Commitment or other obligation to any Borrower hereunder.
(d) None of the Banks shall be permitted to terminate
availability of Eurocurrency Loans as provided in this Section 2.15 on a
discriminatory basis (i.e., availability of Eurocurrency Loans is not also
terminated by the applicable Bank with respect to other customers of such Bank
similarly situated where such customer is subject to documents providing for
such right of termination).
SECTION 2.16. Indemnity. The Company shall indemnify each Bank
against any loss or reasonable expense which such Bank may sustain or incur as a
consequence of (a) any failure by a Borrower to fulfill on the date of any
Borrowing hereunder the applicable conditions set forth in Article III, (b) any
failure by a Borrower to borrow or to refinance, convert (other than conversion
into an ABR Loan) or continue any Loan hereunder after a Committed Borrowing
Request pursuant to Article II has been given or after Competitive Bids have
been accepted or after a notice of conversion or continuation has been given
pursuant to Section 2.05, (c) any payment, prepayment or conversion of a
Eurocurrency Loan or Fixed Rate Loan required or permitted by any provision of
this Agreement or otherwise made on a date other than the last day of the
applicable Interest Period, (d) any default in the payment or prepayment of the
principal amount of any Loan or any part thereof or interest accrued thereon, as
and when due and payable (at the due date thereof, by notice of prepayment or
otherwise), or (e) the occurrence of any Event of Default, including, in the
case of any of the events set forth in clauses (a) through (e) of this Section
2.16, any loss or reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties acquired to
effect or maintain such Loan or any part thereof as a Eurocurrency Loan or Fixed
Rate Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by each Bank of (y) its cost of
obtaining the funds for the Loan being paid, prepaid or converted or not
borrowed, refinanced, converted or continued (based on the IBO Rate or, in the
case of a Fixed Rate Loan, the fixed rate of interest applicable thereto) for
the period from the date of such payment, prepayment or conversion or failure to
borrow, refinance, convert or continue to the last day of the Interest Period
for such Loan (or, in the case of a failure to borrow, refinance, convert or
continue, the Interest Period for the Loan which would have commenced on the
date of such failure to borrow, refinance, convert or continue) over (z) the
amount of interest (as reasonably determined by such Bank) that would be
realized by such Bank in reemploying the funds so paid, prepaid or converted or
not borrowed, refinanced, converted or continued for such period or Interest
Period, as the case may be. A certificate of each Bank setting forth any amount
or amounts which such Bank is entitled to receive pursuant to this Section 2.16
together with either a calculation of such amount or amounts or a statement of
the basis on which
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such amount or amounts have been determined shall be delivered to the Company
(with a copy to the Administrative Agent) and such calculation or statement,
made in good faith shall create a rebuttable presumption that the same is
accurate. The Company shall pay to the Administrative Agent for the account of
each Bank the amount shown as due on any certificate within 30 days after its
receipt of the same. Without prejudice to the survival of any other obligations
of the Company hereunder, the obligations of the Company under this Section 2.16
shall survive the termination of this Agreement and/or the payment or assignment
of any of the Loans. Without limitation of this Section 2.16, the provisions of
this Section 2.16 shall be enforceable against the Company with respect to the
conditions described in clauses (a) and (b) of this Section 2.16 with respect to
any Committed Borrowing Request or Competitive Bid Request given by a Borrower
hereunder on or after the Execution Date regardless of whether the Effective
Date occurs. Notwithstanding the foregoing, in no event shall any Bank be
permitted to receive any compensation hereunder constituting interest in excess
of the Highest Lawful Rate.
SECTION 2.17. Pro Rata Treatment. Except as required under
clause (d) of the proviso of Section 2.05, Section 2.14, Section 2.15, or
Section 2.16, (a) each Committed Borrowing and each refinancing of any Borrowing
with a Committed Borrowing shall be allocated pro rata among the Banks in
accordance with their respective Available Commitments, (b) each payment of the
Facility Fees and each reduction of the Commitments shall be allocated pro rata
among the Banks in accordance with their respective Commitments, (c) each
payment or prepayment of principal (other than any prepayment pursuant to
Section 2.24(d)) of any Committed Borrowing and each payment of interest on the
Loans comprising part of a Committed Borrowing shall be allocated pro rata among
the Banks participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Loans comprising such Borrowing, (d) each
Foreign Currency Revolving Borrowing shall be allocated pro rata among the Banks
participating in such Borrowing, in accordance with their respective Foreign
Currency Bank Maximum Borrowing Amounts with respect to the applicable Foreign
Currency and (e) each payment or prepayment of principal of any Foreign Currency
Revolving Borrowing and each payment of interest on the Loans comprising part of
a Foreign Currency Revolving Borrowing shall be allocated pro rata among the
Banks participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Loans comprising such Borrowing. Except
as required under clause (d) of the proviso of Section 2.05, each payment of
interest on any Competitive Borrowing shall be allocated pro rata among the
Banks participating in such Borrowing in accordance with the respective amounts
of accrued and unpaid interest on their outstanding Competitive Loans comprising
such Borrowing. Each Bank agrees that in computing such Bank's portion of any
Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round each Bank's percentage of such Borrowing to the next higher or lower whole
dollar amount or the Equivalent Amount in the case of a Foreign Currency
Borrowing.
SECTION 2.18. Sharing of Setoffs. Each Bank agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrowers (pursuant to Section 9.06 or otherwise), including, but
not limited to, a secured claim under Section 506 of Title
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11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Bank under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by similar means,
obtain payment (voluntary or involuntary) (other than pursuant to Section 2.14,
Section 2.15 or Section 2.16) of any Committed Loan or Loans as a result of
which the unpaid principal portion of the Committed Loans of such Bank shall be
proportionately less than the unpaid principal portion of the Committed Loans of
any other Bank, it shall be deemed simultaneously to have purchased from such
other Bank at face value, and shall promptly pay to such other Bank the purchase
price for, a participation in the Committed Loans of such other Bank, so that
the aggregate unpaid principal amount of the Committed Loans and participations
in the Committed Loans held by each Bank shall be in the same proportion to the
aggregate unpaid principal amount of all Committed Loans then outstanding as the
principal amount of its Committed Loans prior to such exercise of banker's lien,
setoff or counterclaim or other event was to the principal amount of all
Committed Loans outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.18 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. Each
Borrower expressly consents to the foregoing arrangements and agrees that any
Bank holding a participation in a Committed Loan deemed to have been so
purchased may, to the extent permitted by law, exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by such Borrower to such Bank by reason thereof as fully as if such Bank had
made a Committed Loan directly to such Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) Each Borrower shall make each
payment hereunder not later than noon, New York City time, on the day when due
to the Administrative Agent at its address referred to in Section 9.02 for the
account of the Banks, in federal or other immediately available funds (or, in
the case of Foreign Currency Revolving Loans, such other time and place as shall
be specified in the applicable Foreign Currency Addendum, or in the case of
Competitive Loans denominated in a Foreign Currency as may be agreed upon by the
Company, the Administrative Agent and the Bank or Banks whose Competitive Bids
have been accepted). The Administrative Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest on
Committed Loans (other than pursuant to Section 2.14, Section 2.15 and Section
2.16) or Facility Fees ratably to the Banks and like funds relating to the
payment of any other amount (including payments of principal or interest on
Competitive Loans which are not made ratably to the Banks) payable to any Bank
to such Bank for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. If the Administrative
Agent fails to send to any Bank its portion of any payment timely received by
the Administrative Agent hereunder by the close of business on the day such
payment was received, the Administrative Agent shall pay to such Bank interest
on its portion of such payment from the day such payment was timely received by
the Administrative Agent until the date such Bank's portion of such payment is
sent to such Bank, at the Federal Funds Effective Rate.
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(b) Whenever any payment hereunder (including principal of or
interest on any Borrowing or any fees or other amounts), shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest, fees or other amounts, as
the case may be; provided, however, if such extension would cause payment of
interest on or principal of a Eurocurrency Loan to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(c) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to the Banks
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such 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 a
Borrower shall not have so made such payment in full to the Administrative
Agent, 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
Effective Rate. The provisions of this Section 2.19(c) shall apply, mutatis
mutandis, for the benefit of the Foreign Currency Agent under each Foreign
Currency Addendum from time to time in effect, whether or not such Foreign
Currency Addendum shall expressly so provide.
SECTION 2.20. Taxes. (a) Any and all payments by the Borrowers
hereunder (including any payments made under Section 2.09) shall be made, in
accordance with Section 2.19, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding taxes imposed
on the Administrative Agent's or any Bank's income and franchise taxes imposed
on the Administrative Agent or any Bank, in each case by the United States or
any jurisdiction under the laws of which it is organized or any political
subdivision of such jurisdiction of organization (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to the Banks or
the Administrative Agent (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.20) such Bank or the
Administrative Agent (as the case may be) shall receive an amount equal to the
sum it would have received had no such deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxing authority or other governmental authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from
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any payment made hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any Loan (hereinafter referred
to as "Other Taxes").
(c) Each Borrower will indemnify each Bank and the
Administrative Agent for the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.20) 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, whether or not such Taxes or Other Taxes were correctly
or legally asserted. Such indemnification shall be made within 30 days after the
date any Bank or the Administrative Agent, as the case may be, makes written
demand therefor. If a Bank or the Administrative Agent shall become aware that
it is entitled to receive a refund in respect of Taxes or Other Taxes, it shall
promptly notify the applicable Borrower of the availability of such refund and
shall, within 30 days after receipt by such Borrower, apply for such refund at
such Borrower's expense. If any Bank or the Administrative Agent receives a
refund in respect of any Taxes or Other Taxes for which such Bank or the
Administrative Agent has received payment from a Borrower hereunder it shall
promptly notify such Borrower of such refund and shall, within 30 days after
receipt of a request by such Borrower (or promptly upon receipt, if such
Borrower has requested application for such refund pursuant hereto), repay such
refund to such Borrower without interest, provided that such Borrower, upon the
request of such Bank or the Administrative Agent, agrees to return such refund
(plus penalties, interest or other charges) to such Bank or the Administrative
Agent in the event such Bank or the Administrative Agent is required to repay
such refund.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by a Borrower in respect of any payment to any Bank (or
transferee) or the Administrative Agent, such Borrower will furnish to the
Administrative Agent, at its address referred to in Section 9.02, the original
or a certified copy of a receipt evidencing payment thereof or, if such original
or copy of a receipt is not available from the relevant taxing authority, other
documentation of payment reasonably satisfactory to such Bank (or transferee) or
the Administrative Agent.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.20
shall survive the payment in full of principal and interest hereunder.
(f) Each Bank that is organized outside the United States and
each Foreign Currency Bank shall promptly after the later of the date hereof or
the date in which it shall become a "Bank" hereunder, or the date on which it
shall execute and deliver a Foreign Currency Addendum, or shall become a party
thereto, and from time to time thereafter upon the obsolescence or expiration of
any previously delivered form or certificate (but only so long as such Bank or
Foreign Currency Bank remains lawfully able to do so), provide the Company and
the Administrative Agent with any form or certificate that is required by any
taxing authority (including, if applicable, two original Internal Revenue
Service forms 1001 or 4224, as appropriate (or any successor form or other form
prescribed by the Internal Revenue Service), an original Internal Revenue
Service form W-9 (or any
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successor form), as shall be appropriate to establish, subject to the
penultimate sentence of this Section 2.19(f), that such Bank or Foreign Currency
Bank is exempt from Home Jurisdiction Withholding Taxes on payments pursuant to
this Agreement (including any payments made under any Foreign Currency
Addendum); provided, however, that such Bank or Foreign Currency Bank shall have
been advised in writing by the Company or any other Borrower (including at the
time any renewal form is due) of the form or certificate applicable to it,
determined by reference to the jurisdiction of organization and Applicable
Lending Offices of such Bank or Foreign Currency Bank, or such other branch or
office of such Bank or Foreign Currency Bank designated by such Bank or Foreign
Currency Bank from time to time as the branch or office at which any of its
Loans are to be made or maintained. Each Bank and Foreign Currency Bank shall
promptly notify the Company and the Administrative Agent if, because of any
change in the jurisdiction of organization or an Applicable Lending Office of
such Bank or Foreign Currency Bank, (A) it is required to withdraw or cancel any
form or certificate previously submitted by it or any form or certificate has
otherwise become ineffective or inaccurate or (B) payments to it are or will be
subject to withholding of any Home Jurisdiction Withholding Tax to a greater or
lesser extent than the extent to which payments to it pursuant to this Agreement
were previously subject. If any form or document referred to in this Section
2.19(f) requires the disclosure of information, other than information necessary
to compute the tax payable and information required on the date hereof by
Internal Revenue Service form 1001 or 4224, that each Bank or Foreign Currency
Bank reasonably considers to be confidential, such Bank or Foreign Currency Bank
shall give notice thereof to the Company and the Administrative Agent (and if
such notice is given by a Foreign Currency Bank, the relevant foreign Currency
Agent and the relevant Foreign Currency Borrower) and shall not be obligated to
include in such form or document such confidential information; provided,
however, such form or document will state that such confidential information may
be requested directly from such Bank or Foreign Currency Bank. Unless the
Borrowers and the Administrative Agent have received forms or other documents
satisfactory to them indicating that payments hereunder or under the Loans are
not subject to United States withholding tax or are subject to such tax at a
rate reduced by an applicable tax treaty, the Borrowers, the Administrative
Agent or the Foreign Currency Agent shall withhold taxes from such payments at
the applicable statutory rate in the case of payments to or for any Bank
organized under the laws of a jurisdiction outside the United States or any
Foreign Currency Bank.
(g) Any Bank or Foreign Currency Bank claiming any additional
amounts payable pursuant to this Section 2.20 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by a Borrower or to change the jurisdiction of its Applicable
Lending Office if the making of such a filing or change would avoid the need for
or reduce the amount of any such additional amounts which may thereafter accrue
and would not, in the sole determination of such Bank or Foreign Currency Bank,
be otherwise disadvantageous to such Bank or Foreign Currency Bank.
SECTION 2.21. Borrowing Subsidiary. The Company may designate
any Wholly- owned Subsidiary (other than an Inactive Subsidiary) as an
additional Borrowing Subsidiary. Upon the acceptance by the Administrative Agent
of a Borrowing Subsidiary Counterpart of this
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Agreement in the form of Exhibit 2.22 (a "Borrowing Subsidiary Counterpart")
executed by such Wholly-owned Subsidiary and the Company, such Wholly-owned
Subsidiary shall be a Borrowing Subsidiary and a party to this Agreement.
SECTION 2.22. Liability of Borrowing Subsidiaries.
Notwithstanding anything in this Agreement to the contrary, in no event shall
any Borrowing Subsidiary now or hereafter party to this Agreement be liable for
the Loans or any other obligations of the Company or any other Borrowing
Subsidiary hereunder; it being the intention of the parties hereto that each
Borrowing Subsidiary shall be liable only for the Loans made to it and its other
obligations hereunder.
SECTION 2.23. Terms of Foreign Currency Facilities. (a) The
Company may in its discretion from time to time designate that one or more
Borrowers may borrow Foreign Currency Loans on a revolving basis from any one or
more Banks, with the consent of each such Bank in its sole discretion, by
delivering a Foreign Currency Addendum to the Administrative Agent and the Banks
(through the Administrative Agent) executed by the Company, each such Borrower
and each such Bank; provided, however, that on the effective date of such
designation (i) an Exchange Rate with respect to each Foreign Currency covered
by such Foreign Currency Addendum shall be determinable by reference to the
Reuters currency pages (or comparable publicly available screen) and (ii) no
Default or Event of Default shall have occurred and be continuing. Each Borrower
and, by agreeing to any Foreign Currency Addendum, each relevant Foreign
Currency Bank, acknowledges and agrees that each reference in this Agreement to
any Bank shall, to the extent applicable, be deemed to be a reference to such
Foreign Currency Bank, subject to the second sentence of the definition of such
term.
(b) Each Foreign Currency Addendum shall set forth (i) the
maximum amount (expressed in Dollars and without duplication) available to be
borrowed from all Foreign Currency Banks under such Foreign Currency Addendum
(as the same may be reduced from time to time pursuant to Section 2.24(a) or
Section 2.24(b), a "Foreign Currency Facility Maximum Borrowing Amount") and
(ii) with respect to each Foreign Currency Bank party to such Foreign Currency
Addendum, the maximum amount (expressed in Dollars and without duplication)
available to be borrowed from such Foreign Currency Bank thereunder (as the same
may be reduced from time to time pursuant to Section 2.24(a) or Section 2.24(b),
a "Foreign Currency Bank Maximum Borrowing Amount"). In no event shall the
aggregate of all Foreign Currency Bank Maximum Borrowing Amounts in respect of
any Foreign Currency Bank at any time exceed such Bank's Commitment. Except as
provided in Section 2.23(c), the making of Foreign Currency Loans by a Foreign
Currency Bank under a Foreign Currency Addendum shall under no circumstances
reduce the amount available to be borrowed from such Bank under any other
Foreign Currency Addendum to which such Bank is a party.
(c) Except as otherwise required by applicable law, in no
event shall the Foreign Currency Banks have the right to accelerate the Foreign
Currency Loans outstanding thereunder, or to terminate their commitments (if
any) to make Foreign Currency Loans prior to the stated
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termination date in respect thereof, except that such Foreign Currency Banks
shall, in each case, have such rights upon an acceleration of the Loans and a
termination of the Commitments pursuant to Article VI, respectively. No Foreign
Currency Loan may be made (i) which is denominated in any currency other than a
Foreign Currency, (ii) if a Default or an Event of Default shall have occurred
and be continuing or would result therefrom or (iii) if, after giving effect
thereto, (A) the sum of the aggregate principal amount of the Dollar Loans and
Foreign Currency Loans (Dollar Equivalent) (other than Competitive Loans) of any
Bank then outstanding would exceed such Bank's Commitment, (B) the Dollar
Equivalent of the aggregate principal amount of outstanding Foreign Currency
Revolving Loans denominated in a specified Foreign Currency would exceed the
applicable Foreign Currency Facility Maximum Borrowing Amount or (C) the sum of
the Aggregate Revolving Credit Exposure and the Aggregate Competitive Loan
Exposure would exceed the Total Commitment.
(d) The relevant Foreign Currency Banks, or, if so specified
in the relevant Foreign Currency Addendum, an agent acting on their behalf,
shall furnish to the Administrative Agent, promptly following the making,
payment or prepayment of each Foreign Currency Revolving Loan, or at any other
time at the request of the Administrative Agent, a statement setting forth the
outstanding Foreign Currency Revolving Loans made under such Foreign Currency
Addendum and the amount and terms of any pending prepayment notices or borrowing
requests received by such Banks or agent through the date of the Administrative
Agent's request.
(e) The relevant Borrower shall furnish to the Administrative
Agent copies of any amendment, supplement or other modification to the terms of
any Foreign Currency Addendum promptly after the effectiveness thereof.
(f) The Company may terminate any Foreign Currency Addendum,
if there are not any Loans outstanding thereunder (or, if there are Loans
outstanding thereunder) with the consent of each Foreign Currency Bank party
thereto in its sole discretion, by written notice to the Administrative Agent,
which notice shall be executed by the Company, each relevant Borrower and, if
their consent is required, each such Foreign Currency Bank. Once notice of such
termination is received by the Administrative Agent, such Foreign Currency
Addendum and the loans and other obligations outstanding thereunder shall
immediately cease to be subject to the terms of this Agreement.
SECTION 2.24. Currency Fluctuations, etc. (a) If, on any Reset
Date or any Borrowing Date (after giving effect to (i) any Loans to be made or
repaid on such date and (ii) any amendment, supplement or other modification to
any Foreign Currency Addendum effective on such date of which the Administrative
Agent has received notice), the Aggregate Outstanding Dollar
Revolving Extensions of Credit of any Bank exceeds the Dollar Revolving Credit
Overage of such Bank (the amount of such excess, the "Dollar Revolving Credit
Excess"), then the Administrative Agent shall promptly notify the Company of
such Dollar Revolving Credit Excess. Within three Business Days after receiving
such notice (during which time the Banks shall not be obligated to
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make any further Loans hereunder), the Company may (i) prepay Loans other than
Foreign Currency Loans (or cause any Borrower to prepay Loans other than Foreign
Currency Loans made to it) and/or (ii) as indicated in a facsimile notice (or
telephone notice promptly confirmed by facsimile transmission) to the
Administrative Agent, reduce the Foreign Currency Maximum Borrowing Amount with
respect to any one or more Foreign Currency Addenda (and prepay Foreign Currency
Loans to the extent required as a result of such reduction) so that the
aggregate amount under clauses (i) and (ii) equals or exceeds and thereby
eliminates such Dollar Revolving Credit Excess. To the extent the Company does
not so eliminate such Dollar Revolving Credit Excess by the third Business Day,
then such Bank's Foreign Currency Bank Maximum Borrowing Amount under each
Foreign Currency Addendum to which such Bank is a party shall be reduced on such
third Business Day by an amount equal to the product of such Dollar Revolving
Credit Excess times a fraction the numerator of which shall equal the Foreign
Currency Bank Maximum Borrowing Amount under such Foreign Currency Addendum and
the denominator of which shall equal the aggregate of all Foreign Currency Bank
Maximum Borrowing Amounts of such Bank under all Foreign Currency Addenda to
which it is a party. After giving effect to any such reduction in Foreign
Currency Bank Maximum Borrowing Amounts, the Foreign Currency Facility Maximum
Borrowing Amount with respect to each Foreign Currency Addendum shall in turn be
reduced to an amount equal to the aggregate of Foreign Currency Bank Maximum
Borrowing Amounts of all Banks party to such Foreign Currency Addendum.
Reductions in Foreign Currency Facility Maximum Borrowing Amounts and Foreign
Currency Bank Maximum Borrowing Amounts pursuant to this Section 2.24(a) shall
be effective until the amount thereof shall be recalculated by the
Administrative Agent on the next succeeding Reset Date or Borrowing Date, and
shall not be deemed to reduce the stated amount of any commitment of any Foreign
Currency Bank in respect of any Foreign Currency Addendum, whether or not such
Foreign Currency Bank shall at the time by reason of its Foreign Currency Bank
Maximum Borrowing Amount be obligated to make Foreign Currency Loans thereunder
in the full amount of such commitment.
(b) If, on any Reset Date or Borrowing Date (after giving
effect to (i) any Loans to be made or repaid on such date and (ii) any
amendment, supplement or other modification to any Foreign Currency Addendum
effective on such date of which the Administrative Agent has received notice),
the sum of (A) the Aggregate Outstanding Dollar Revolving Extensions of Credit
of all the Banks and (B) the Aggregate Competitive Loan Exposure exceeds the
Dollar Facility Overage (the amount of such excess, the "Dollar Facility
Excess"), then the Administrative Agent shall promptly notify the Company of
such Dollar Facility Excess. Within three Business Days after receiving such
notice (during which time the Banks shall not be obligated to make any further
Loans hereunder), the Company may (i) prepay Loans other than Foreign Currency
Loans (or cause any Borrower to prepay Loans other than Foreign Currency Loans
made to it) and/or (ii) as indicated in a facsimile notice (or telephone notice
promptly confirmed by facsimile transmission) to the Administrative Agent,
reduce the Foreign Currency Facility Maximum Borrowing Amount with respect to
any one or more Foreign Currency Addenda (and prepay Foreign Currency Loans to
the extent required as a result of such reduction) so that the aggregate amount
under clauses (i) and (ii) equals or exceeds and thereby eliminates such Dollar
Facility Excess. To the extent the Company does not so eliminate
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such Dollar Facility Excess by the third Business Day, then the Foreign Currency
Facility Maximum Borrowing Amount under each Foreign Currency Addendum shall be
reduced on such third Business Day by an amount equal to the product of such
Dollar Facility Excess times a fraction the numerator of which shall equal the
Foreign Currency Facility Maximum Borrowing Amount under such Foreign Currency
Addendum and the denominator of which shall equal the aggregate of the Foreign
Currency Facility Maximum Borrowing Amounts with respect to all Foreign Currency
Addenda. Each such reduction in the Foreign Currency Facility Maximum Borrowing
Amount under a Foreign Currency Addendum shall in turn reduce the respective
Foreign Currency Bank Maximum Borrowing Amounts of each Foreign Currency Bank
party to such Foreign Currency Addendum, pro rata on the basis of the respective
Foreign Currency Bank Maximum Borrowing Amounts of such Foreign Currency Banks.
Reductions in Foreign Currency Facility Maximum Borrowing Amounts and Foreign
Currency Bank Maximum Borrowing Amounts pursuant to this Section 2.24(b) shall
be effective until the amount thereof shall be recalculated by the
Administrative Agent on the next succeeding Reset Date or Borrowing Date, and
shall not be deemed to reduce the stated amount of any commitment of any Foreign
Currency Bank in respect of any Foreign Currency Addendum.
(c) If, on any Reset Date, the Dollar Equivalent of the
Foreign Currency Loans outstanding under a Foreign Currency Addendum exceeds
105% of the Foreign Currency Facility Maximum Borrowing Amount with respect
thereto (after giving effect to any reductions therein effected pursuant to
Section 2.24(a) or Section 2.24(b) on such date), then the relevant Borrower
shall, within three Business Days after notice thereof from the Administrative
Agent, prepay Foreign Currency Loans in an aggregate amount such that, after
giving effect thereto, (i) the Dollar Equivalent of all such Foreign Currency
Loans shall be equal to or less than such Foreign Currency Facility Maximum
Borrowing Amount and (ii) the Dollar Equivalent of the Foreign Currency Loans of
each relevant Foreign Currency Bank shall be equal to or less than such Foreign
Currency Bank's Foreign Currency Bank Maximum Borrowing Amount with respect to
such Foreign Currency Addendum.
(d) If, on any Reset Date, the Revolving Credit Exposure of
any Bank exceeds 105% of such Bank's Commitment, then, within three Business
Days after notice thereof from the Administrative Agent, the Company shall
prepay and/or cause the relevant Borrowing Subsidiaries to prepay the Loans in
accordance with this Agreement, in an aggregate amount such that, after giving
effect thereto, the Revolving Credit Exposure of such Bank shall be equal to or
less than such Bank's Revolving Credit Commitment.
(e) The Administrative Agent shall promptly notify the
relevant Banks of the amount of any reductions in Foreign Currency Facility
Maximum Borrowing Amounts or Foreign Currency Bank Maximum Borrowing Amounts,
and the amount of any prepayments, required pursuant to this Section 2.24.
SECTION 2.25. Designation of Additional Foreign Currencies.
(a) The Company may from time to time request that any one or more additional
freely available currencies which are
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freely transferable and freely convertible into Dollars be designated as
"Foreign Currencies" hereunder by providing written notice to the Administrative
Agent specifying (i) each proposed new currency and (ii) any proposed Borrowing
Subsidiary to be a Borrower with respect to such proposed Foreign Currency. The
Administrative Agent shall promptly forward to each Bank a copy of any such
notice. Within ten Business Days following the receipt of such notice, each Bank
shall notify the Administrative Agent in writing whether such designation is
acceptable to such Bank, in its sole discretion, and (without such advice
constituting a commitment on the part of such Bank to do so) whether such Bank
has an interest in funding Loans in the proposed new currency and, if so, the
level (as an amount expressed in Dollars) of such Bank's interest, and the
Administrative Agent promptly shall notify the Company thereof.
(b) In the event that such designation is acceptable to the
Majority Banks, and that the Administrative Agent shall determine (after
consultation with the Company) that indications of interest in funding Loans in
such proposed new currency sufficient to satisfy the Company's projected need
for Loans denominated in such currency have been received from the Banks, the
Company shall cause the proposed Borrower to deliver to the Administrative Agent
(i) a Borrowing Subsidiary Counterpart, as provided in Section 2.21, (ii) a
Foreign Currency Addendum, as provided in Section 2.23, and (iii) such other
documents and instruments as the Administrative Agent reasonably may request.
(c) From and after the date upon which the Administrative
Agent has received the documents (all of which shall be in form and substance
reasonably satisfactory to the Administrative Agent) described in Section
2.25(b), the term "Foreign Currency" shall be deemed to be amended to reflect
the designation of such currency as a Foreign Currency, the terms "Borrowing
Subsidiary" and "Borrower" shall be deemed to be amended to reflect such new
Borrowing Subsidiary, and the term "Home Jurisdiction Withholding Taxes" shall
be deemed to be amended to reflect the withholding taxes of the country of such
new currency.
(d) The Administrative Agent shall give prompt notice to the
Banks of the effectiveness of such designation and shall deliver to each copies
of all documents delivered pursuant to Section 2.25(b).
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Initial Loans to the
Company or an Initial Borrowing Subsidiary. The obligation of each Bank to make
its initial Loan to the Company or an Initial Borrowing Subsidiary is subject to
the condition precedent that the Administrative Agent shall have received on or
before the initial Borrowing Date the following, each dated (unless otherwise
indicated) such date and, with respect to all such documents referred to in
Section 3.01(a),
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Section 3.01(b), Section 3.01(c), Section 3.01(d), Section 3.01(e), Section
3.01(f), Section 3.01(g), and Section 3.01(h) in sufficient copies for each Bank
and the Administrative Agent:
(a) A counterpart of (i) this Agreement (to which all of the
Exhibits and Schedules have been attached) dated as of the date hereof
executed by the Company, the Initial Borrowing Subsidiaries, the
Administrative Agent and the Banks, and (ii) in the case of an Initial
Borrowing Subsidiary, its Foreign Currency Addendum, executed by the
Company, the applicable Foreign Currency Agent and each of the Foreign
Currency Banks parties thereto.
(b) (i) A copy of the articles of incorporation, as amended,
of the Company, certified by the Secretary of State of the State of
Texas and a certificate as to the good standing of the Company from the
Comptroller of the State of Texas; (ii) a certificate of the Secretary
or an Assistant Secretary of the Company certifying (A) that attached
thereto is a true and complete copy of the bylaws of the Company as in
effect on the date of such certificate and at all times since a date
prior to the date of the resolutions described in (B) below, (B) that
attached thereto is a true and complete copy of resolutions (i) duly
adopted by the Executive Committee of the Board of Directors of the
Company authorizing the execution, delivery and performance of this
Agreement and the Agent's Fee Letter and (ii) duly adopted by the Board
of Directors of the Company, appointing said Executive Committee, and
that such resolutions have not been modified, rescinded or amended and
are in full force and effect, (C) that the articles of incorporation of
the Company have not been amended since the last amendment thereto
shown on the good standing certificate furnished pursuant to (i) above
and (D) as to the incumbency and specimen signatures of each officer of
the Company executing this Agreement and the Agent's Fee Letter and
(iii) a certificate of another officer of the Company as to the
incumbency and specimen signatures of the Secretary or Assistant
Secretary of the Company.
(c) (i) A copy of the articles or certificate of incorporation
(or other similar evidence of organization) of each Initial Borrowing
Subsidiary, together with all amendments, and a current certificate of
good standing, both certified by the appropriate governmental officer,
in its jurisdiction of organization; (ii) a certificate of the
Secretary or Assistant Secretary of such Initial Borrowing Subsidiary
certifying, inter alia, (A) true and correct copies of the bylaws (or
other similar document) of such Initial Borrowing Subsidiary as in
effect on the date of such certificate and at all times since a date
prior to the date of the resolutions or other action described in
clause (B) below, (B) true and complete copies of resolutions duly
adopted by the Board of Directors of such Initial Borrowing Subsidiary
(or of the taking of such other action as may be necessary and
appropriate under applicable law), authorizing such Initial Borrowing
Subsidiary to execute, deliver and perform its obligations under this
Agreement and to borrow and effect other transactions hereunder, and
that such resolutions or other action has not been modified, rescinded
or amended and is in full force and effect and (C) the incumbency and
specimen signatures of the Persons executing any
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documents on behalf of such Initial Borrowing Subsidiary; and (iii) a
certificate of another officer of such Initial Borrowing Subsidiary as
to the incumbency and specimen signature of the Secretary or Assistant
Secretary of such Initial Borrowing Subsidiary.
(d) A certificate of a Senior Vice President, an Executive
Vice President or a Vice President of the Company certifying (i) the
truth of the representations and warranties made by the Company in this
Agreement and (ii) the absence of the occurrence and continuance of any
Default or Event of Default and (iii) that on or prior to the initial
Borrowing Date, the principal of and interest on all loans, all accrued
fees and all other amounts due under the Existing Agreements shall have
been paid in full and the commitments thereunder shall have been
terminated.
(e) A certificate of a principal officer of each Initial
Borrowing Subsidiary certifying (i) the truth of the representations
and warranties set forth in this Agreement with respect to such Initial
Borrowing Subsidiary and (ii) the absence of the occurrence and
continuance of any Default or Event of Default with respect to such
Initial Borrowing Subsidiary.
(f) The written opinions of (i) Liddell, Sapp, Zivley, Hill &
LaBoon, L.L.P., counsel to the Company and the Initial Borrowing
Subsidiaries, addressed to the Administrative Agent and the Banks and
in form and substance acceptable to the Administrative Agent and the
Banks and (ii) James M. Shelger, Senior Vice President, General Counsel
and Secretary of the Company, addressed to the Administrative Agent and
the Banks and in form and substance acceptable to the Administrative
Agent and the Banks.
(g) One or more written opinions of local counsel to each
Initial Borrowing Subsidiary, each in form and substance satisfactory
to the Administrative Agent and the Banks.
(h) A letter from Corporation Service Company, in form and
substance satisfactory to the Administrative Agent, evidencing the
obligation of Corporation Service Company to accept service of process
in the State of New York on behalf of each Initial Borrowing
Subsidiary.
(i) An Administrative Questionnaire completed by each Bank.
In addition, on the Effective Date the Administrative Agent shall have received
all fees which it is entitled to receive on such date pursuant to the Agent's
Fee Letter.
SECTION 3.02. Conditions Precedent to the Initial Loan to each
Borrowing Subsidiary (other than an Initial Borrowing Subsidiary). The
obligation of each Bank to make its initial Loan to any Borrowing Subsidiary
(other than an Initial Borrowing Subsidiary) is subject to
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the further conditions precedent that the Administrative Agent shall have
received on or before the Borrowing Date for such Loan the following, each dated
such date, and in sufficient copies for each Bank:
(a) A Borrowing Subsidiary Counterpart executed by such
Borrowing Subsidiary and acknowledged by the Company and, if such
Borrowing Subsidiary is to obtain Foreign Currency Loans, a counterpart
of its Foreign Currency Addendum, executed by the Company, the
applicable Foreign Currency Agent and the Foreign Currency Banks
parties thereto.
(b) (i) A copy of the articles or certificate of incorporation
(or other similar evidence of organization) of such Borrowing
Subsidiary, together with all amendments, and a current certificate of
good standing, both certified by the appropriate governmental officer,
in its jurisdiction of organization; (ii) a certificate of the
Secretary or Assistant Secretary of such Borrowing Subsidiary
certifying, inter alia, (A) true and correct copies of the bylaws (or
other similar document) of such Borrowing Subsidiary as in effect on
the date of such certificate and at all times since a date prior to the
date of the resolutions or other action described in clause (B) below,
(B) true and complete copies of resolutions duly adopted by the Board
of Directors of such Borrowing Subsidiary (or of the taking of such
other action as may be necessary and appropriate under applicable law),
authorizing such Borrowing Subsidiary to execute, deliver and perform
its obligations under its Borrowing Subsidiary Counterpart this
Agreement, and to borrow and effect other transactions hereunder, and
that such resolutions or other action has not been modified, rescinded
or amended and is in full force and effect and (C) the incumbency and
specimen signatures of the Persons executing any documents on behalf of
such Borrowing Subsidiary; and (iii) a certificate of another officer
of such Borrowing Subsidiary as to the incumbency and specimen
signature of the Secretary or Assistant Secretary of such Borrowing
Subsidiary.
(c) A certificate of a principal officer of such Borrowing
Subsidiary certifying (i) the truth of the representations and
warranties set forth in this Agreement with respect to such Borrowing
Subsidiary and (ii) the absence of the occurrence and continuance of
any Default or Event of Default with respect to such Borrowing
Subsidiary.
(d) Written opinions of (i) counsel to such Borrowing
Subsidiaries, and (ii) the respective Foreign Currency Agents, each in
form and substance (including, without limitation, the allocation as
between such counsel of the matters covered by their respective
opinions) satisfactory to the Administrative Agent and the Banks.
(e) A letter from Corporation Service Company in form and
substance satisfactory to the Administrative Agent, evidencing the
obligation of Corporation Service Company to accept service of process
in the State of New York on behalf of such Borrowing Subsidiary.
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(f) Such other documents as either the Administrative Agent or
any Bank through the Administrative Agent may have reasonably
requested.
SECTION 3.03. Conditions Precedent to Each Committed Borrowing
and Foreign Currency Revolving Borrowing. The obligation of each Bank to make a
Committed Loan on the occasion of any Committed Borrowing and each Foreign
Currency Revolving Loan on the occasion of any Foreign Currency Revolving
Borrowing (including the initial Committed Borrowing and the initial Foreign
Currency Revolving Borrowing) shall be subject to the further conditions
precedent that on the Borrowing Date of such Borrowing or Foreign Currency
Revolving Borrowing the following statements shall be true (and each of the
giving of the applicable Committed Borrowing Request or the notice required by
the applicable Foreign Currency Addendum and the acceptance by a Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by the
Company and such Borrower (if not the Company) that on the date of such
Borrowing such statements are true; provided, however, that to the extent such
representation and warranty is made by a Borrowing Subsidiary, such
representation and warranty shall (in the case of clauses (a) and (b) be made
only with respect to such Borrowing Subsidiary and its Subsidiaries):
(a) The representations and warranties contained in Article IV
are correct on and as of the date of such Borrowing, before and after
giving effect to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; provided, however,
that for purposes of this clause (a), on and after any date on which
the Company delivers its consolidated financial statements to the
Administrative Agent and the Banks pursuant to Section 5.01(a)(i) or
5.01(a)(ii), as the case may be, (A) the reference in the first
sentence of Section 4.07 to the Company Financials shall be a reference
to the consolidated financial statements of the Company and its
Subsidiaries most recently delivered to the Administrative Agent and
the Banks by the Company pursuant to Section 5.01(a)(i) or 5.01(a)(ii),
as the case may be, prior to the date of such Borrowing and (B) the
reference in the last sentence of Section 4.07 to December 31, 1996,
shall be a reference to the date of the audited consolidated financial
statements most recently delivered to the Administrative Agent and the
Banks pursuant to Section 5.01(a)(i);
(b) No event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
which constitutes either a Default or an Event of Default; and
(c) Following the making of such Borrowing and all other
Borrowings to be made on the same day under this Agreement, the
aggregate principal amount of all Loans (by Dollar Equivalent in the
case of Foreign Currency Loans) then outstanding shall not exceed the
Total Commitment.
SECTION 3.04. Conditions Precedent to Each Competitive
Borrowing. The obligation of each Bank which is to make a Competitive Loan on
the occasion of a Competitive
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Borrowing (including the initial Competitive Borrowing) to make such Competitive
Loan as part of such Competitive Borrowing is subject to the further conditions
precedent that:
(a) The Administrative Agent shall have received a Competitive
Bid Request with respect thereto; and
(b) On the Borrowing Date of such Competitive Borrowing the
following statements shall be true (and each of the giving of the
applicable Competitive Bid Request and the acceptance by a Borrower of
the proceeds of such Competitive Borrowing shall constitute a
representation and warranty by the Company and such Borrower (if not
the Company) that on the date of such Competitive Borrowing such
statements are true; provided, however, that to the extent such
representation and warranty is made by a Borrowing Subsidiary, such
representation and warranty shall (in the case of clauses (i) and (ii)
be made only with respect to such Borrowing Subsidiary and its
Subsidiaries):
(i) The representations and warranties contained in
Article IV are correct on and as of the date of such
Competitive Borrowing, before and after giving effect to such
Competitive Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; provided,
however, that for purposes of this clause (i), on and after
any date on which the Company delivers its consolidated
financial statements to the Administrative Agent and the Banks
pursuant to Section 5.01(a)(i) or 5.01(a)(ii), as the case may
be, (A) the reference in the first sentence of Section 4.07 to
the Company Financials shall be a reference to the
consolidated financial statements of the Company and its
Subsidiaries most recently delivered to the Administrative
Agent and the Banks by the Company pursuant to Section
5.01(a)(i) or 5.01(a)(ii), as the case may be, prior to the
date of such Competitive Borrowing and (B) the reference in
the last sentence of Section 4.07 to December 31, 1996, shall
be a reference to the date of the audited consolidated
financial statements most recently delivered to the
Administrative Agent and the Banks pursuant to Section
5.01(a)(i);
(ii) No event has occurred and is continuing, or
would result from such Competitive Borrowing or from the
application of the proceeds therefrom, which constitutes
either a Default or an Event of Default; and
(iii) Following the making of such Competitive
Borrowing and all other Borrowings to be made on the same day
under this Agreement, the aggregate principal amount of all
Loans (by Dollar Equivalent in the case of Foreign Currency
Loans) then outstanding shall not exceed the Total Commitment.
SECTION 3.05. Conditions Precedent to Conversions and
Continuations. The obligation of the Banks to convert any existing Committed
Borrowing into a Eurodollar Committed
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Borrowing or to continue any existing Committed Borrowing as a Eurodollar
Committed Borrowing is subject to the condition precedent that on the date of
such conversion or continuation no Default or Event of Default shall have
occurred and be continuing or would result from the making of such conversion or
continuation. The acceptance of the benefits of each such conversion and
continuation shall constitute a representation and warranty by the Company and
each Borrowing Subsidiary to each of the Banks that no Default or Event of
Default shall have occurred and be continuing or would result from the making of
such conversion or continuation; provided, however, that to the extent such
representation and warranty is made by a Borrowing Subsidiary, such
representation and warranty shall be made only with respect to such Borrowing
Subsidiary and its Subsidiaries.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Administrative
Agent and the Banks and, to the extent the following relates to any Borrowing
Subsidiary or its Subsidiaries, such Borrowing Subsidiary severally represents
and warrants to the Administrative Agent and the Banks as follows (all
references in this Article IV to "this Agreement" being deemed to include also,
in the case of any Borrowing Subsidiary (other than an Initial Borrowing
Subsidiary), its Borrowing Subsidiary Counterpart):
SECTION 4.01. Organization and Qualification. The Company and
each of its Subsidiaries (except Inactive Subsidiaries) (a) are entities duly
organized, validly existing and in good standing under the laws of the
respective jurisdictions of their organization, (b) have the corporate or other
power to own their property and to carry on their businesses as now conducted
and (c) are duly qualified to do business as foreign corporations and are in
good standing in every jurisdiction in which the failure to be so qualified
would have a material adverse effect upon the business or properties of the
Company and its Subsidiaries taken as a whole or upon the ability of any
Borrower to perform its obligations under this Agreement or, in the case of the
Company, the Guaranty. The Company is a Texas corporation. The corporations
named in Schedule 4.01 are the only Subsidiaries of the Company on the date of
this Agreement, and such Schedule accurately reflects the percentage of (y) the
issued and outstanding capital stock and (z) the stock of each class having
ordinary voting power, of each Subsidiary owned by the Company on the date of
this Agreement and accurately identifies the Consolidated Subsidiaries, the
Inactive Subsidiaries, the Substantially-owned Subsidiaries and the Wholly-owned
Subsidiaries on the date of this Agreement.
SECTION 4.02. Authorization, Validity, Etc. Each Borrower has
the corporate or other power and authority to make and carry out this Agreement
(and, in the case of the Company, the Guaranty), to make the Borrowings provided
for herein and to perform its obligations hereunder (and, in the case of the
Company, the Guaranty) and all such action has been duly authorized by all
necessary corporate proceedings on its part. This Agreement has been duly and
validly executed and
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delivered by the Borrowers and the Guaranty and the Agent's Fee Letter have been
duly and validly executed and delivered by the Company and all such agreements
constitute valid and legally binding agreements of the Borrowers parties thereto
enforceable in accordance with their respective terms, except, in each case, as
such enforceability may be limited by bankruptcy, insolvency or other laws of
general application relating to or affecting the enforcement of creditors'
rights.
SECTION 4.03. Governmental Consents, Etc. No authorization,
consent, approval, license or exemption of or filing or registration with any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is necessary for the valid execution,
delivery or performance by any Borrower of this Agreement, or by the Company of
the Guaranty or the Agent's Fee Letter.
SECTION 4.04. Conflicting or Adverse Agreements or
Restrictions. Neither the Company nor any of its Subsidiaries is a party to any
contract or agreement or subject to any restriction which materially and
adversely affects the business or assets or financial condition of the Company
and its Subsidiaries taken as a whole. Neither the execution nor delivery of
this Agreement or the Guaranty nor compliance with the terms and provisions
hereof or thereof nor any Borrowing will be contrary to the provisions of, or
constitute a default under, (a) the charter or bylaws of the Company or any of
its Subsidiaries or (b) any applicable law or any applicable regulation, order,
writ, injunction or decree of any court or governmental instrumentality or (c)
any agreement to which the Company or any of its Subsidiaries is a party or by
which it is bound or to which it is subject, which default, in the case of
clause (b) or (c) of this Section 4.04 could, individually or together with all
other such defaults described in this Section 4.04, reasonably be expected to
result in a material adverse change in the business or condition of the Company
and its Subsidiaries taken as a whole or upon the ability of any Borrower to
perform its obligations under this Agreement and, in the case of the Company,
the Guaranty.
SECTION 4.05. Title to Assets. The Company and each Subsidiary
(except Inactive Subsidiaries) have good and indefeasible title to their
respective assets, subject to no Liens, except those permitted in Section
5.02(c).
SECTION 4.06. Actions Pending. There is no action or
proceeding pending or, to the knowledge of any Borrower, threatened against the
Company or any of its Subsidiaries before any court or administrative agency
which could reasonably be expected to result in a material adverse change in the
business or condition of the Company and its Subsidiaries taken as a whole or
upon the ability of such Borrower to perform its obligations under this
Agreement and, in the case of the Company, the Guaranty.
SECTION 4.07. Financial Statements. The Company has furnished
or has caused to be furnished to each Bank (a) consolidated financial statements
of the Company as at and for the fiscal year ended December 31, 1996, included
in the Company's annual report for the fiscal year ended December 31, 1996 and
accompanied by the report and opinion of Coopers & Lybrand L.L.P.,
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(b) the Annual Report of the Company on Form 10-K for the fiscal year ended
December 31, 1996 and (c) the Quarterly Report of the Company on Form 10-Q for
the fiscal quarter ended March 31, 1997 (the financial statements described in
clauses (a) through (c) being collectively, the "Company Financials"). The
Company Financials have been prepared in conformity with GAAP consistently
followed (except as otherwise disclosed in such financial statements) throughout
the periods involved and present fairly the consolidated financial condition of
the Company and its Consolidated Subsidiaries and the consolidated results of
operations of the Company and its Consolidated Subsidiaries as at the dates and
for the periods indicated. There has been no material adverse change in the
consolidated condition or operation, financial or otherwise, of the Company and
its Subsidiaries since December 31, 1996.
SECTION 4.08. Default. Neither the Company nor any of its
Subsidiaries is in default in any respect under the provisions of any instrument
evidencing any Debt or of any agreement relating thereto, or in default in any
respect under any order, writ, injunction or decree of any court, or in default
in any respect under or in violation of any law, order, regulation or demand of
any governmental instrumentality, which defaults or violations could reasonably
be expected to have a material adverse effect upon the business or properties of
the Company and its Subsidiaries taken as a whole or upon the ability of any
Borrower to perform its obligations under this Agreement and, in the case of the
Company, the Guaranty.
SECTION 4.09. Investment Company Act. Neither the Company nor
any of its Subsidiaries is, or is directly or indirectly controlled by or acting
on behalf of any Person which is, an "investment company," as such term is
defined in the Investment Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the
Company nor any of its Subsidiaries is a non-exempt "holding company," or
subject to regulation as such, or, to the knowledge of the Company's officers,
an "affiliate" of a "holding company" or a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 4.11 ERISA. Neither the Company nor any of its
Subsidiaries has incurred any accumulated funding deficiency, within the meaning
of ERISA, material to the Company and its Subsidiaries taken as a whole, whether
or not waived, or any liability material to the Company and its Subsidiaries,
when taken as a whole, under Title IV of ERISA.
SECTION 4.12. Payment of Taxes. The Company and each of its
Subsidiaries (except Inactive Subsidiaries) have filed all federal and state
income and franchise tax returns which, to the knowledge of the officers
thereof, are required to be filed and have paid all taxes shown on said returns
and all assessments which are due other than such taxes and assessments which
are being contested in good faith by appropriate proceedings diligently
conducted and for which reserves or other appropriate provisions, if any, as
shall be required by GAAP, have been made. The
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consolidated federal income tax returns of the Company and its Consolidated
Subsidiaries have been examined and reported on by the Internal Revenue Service
for all fiscal years to and including the fiscal year ended December 31, 1992.
SECTION 4.13. Purpose of Loans. None of the proceeds of the
Loans will be used for the purpose of purchasing or carrying any "margin stock"
within the meaning of Regulation G or Regulation U (herein called "Margin
Stock") or for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry Margin Stock, or for any other purpose
which might constitute a "purpose" credit within the meaning of Regulation G or
Regulation U, as now in effect or as they may hereafter be amended. Margin Stock
did not on December 31, 1996, and does not on the date hereof constitute more
than 25% of the assets of the Company or any of its Subsidiaries, and the
Company and the other Borrowers do not intend or foresee that Margin Stock will
at any time during the term of this Agreement constitute more than 25% of such
assets.
SECTION 4.14. Patents, Etc. The Company and each of its
Subsidiaries have all patents, patent rights or licenses, trademarks, service
marks, trademark rights, trade names, trade name rights, and copyrights which
are required in order for it to conduct its business as now conducted without
any known material conflict with the rights of others.
SECTION 4.15. No Material Guarantees or Letters of Credit.
Each Assured Obligation and each Letter of Credit Obligation of the Company and
its Subsidiaries is listed in the Company Financials, in the most recently
delivered financial statements delivered pursuant to Section 5.01(a) or on
Schedule 4.15, other than any such Assured Obligation or Letter of Credit
Obligation which individually does not exceed $100,000 or which together with
all such other Assured Obligations and Letter of Credit Obligations does not
exceed $1,000,000; provided, however, after the Effective Date, Schedule 4.15
shall be deemed to include all Assured Obligations and Letter of Credit
Obligations of the Company and its Subsidiaries incurred or issued in accordance
with the provisions of Section 5.02(g). Neither the Company nor any of its
Subsidiaries has any liability, contingent or otherwise, which either
individually or collectively with all such other liabilities could reasonably be
expected to have a material adverse effect upon the business or properties of
the Company and its Subsidiaries taken as a whole or upon the ability of any
Borrower to perform its obligations under this Agreement and, in the case of the
Company, the Guaranty.
SECTION 4.16. Enhancement Agreements. Schedule 4.16 describes
the principal amount of all obligations, including all Debt, Letter of Credit
Obligations and unfunded commitments which are covered by any Enhancement
Agreement; provided, however, after the Execution Date, Schedule 4.16 shall be
deemed to include all such principal obligations described on the schedule most
recently delivered pursuant to the last sentence of Section 5.01(a).
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ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any Loan shall
remain unpaid or any Bank shall have any Commitment hereunder, unless the
Majority Banks shall otherwise agree in writing, each Borrower covenants and
agrees for itself and the Company covenants and agrees with respect to each
other Borrower as follows:
(a) Financial Statements and Other Information. The Company
shall deliver to each Bank:
(i) As soon as available, and in any event within 120
days after the end of each fiscal year, a copy of the annual
audit report of the Company for such fiscal year containing a
consolidated balance sheet, a consolidated statement of
income, a consolidated statement of stockholders' equity and a
consolidated statement of cash flows, all in reasonable detail
and accompanied by a report and opinion of Coopers & Lybrand
L.L.P. or another independent certified public accountant of
recognized standing satisfactory to the Majority Banks. The
Company will obtain from such accountants and deliver to each
Bank at the time said financial statements are delivered the
written statement of such accountants that in making the
examination necessary for said report and opinion they have
obtained no knowledge of any Event of Default or Default, or
if such accountants shall have obtained knowledge of any Event
of Default or Default, they shall state the nature and period
of existence thereof in such statement; provided, that such
accountants shall not be liable directly or indirectly to any
such Bank for failure to obtain knowledge of any Event of
Default or Default;
(ii) As soon as available, and in any event within 60
days after the end of each of the first three quarterly
accounting periods in each fiscal year, a consolidated
statement of stockholders' equity and the report of the
Company to the Securities and Exchange Commission on Form
10-Q;
(iii) Promptly after sending or filing thereof,
copies of all statements and reports sent to stockholders and
all effective registration statements and regular or periodic
reports filed with the Securities and Exchange Commission;
(iv) Promptly upon request, such additional financial
or other information as any Bank may reasonably request;
(v) Promptly, and in any case within five days after
the President, the Senior Vice President and Chief Financial
Officer, the Vice President and Treasurer or the General
Counsel of the Company learns thereof, notice of (A) the
occurrence of a Default or an Event of Default, (B) any
material default of the Company or any
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of its Subsidiaries under any other borrowed money obligation,
(C) any monetary or other material default of the Company or
any of its Subsidiaries under any material contract or (D)
receipt of any notice from any federal or other governmental
instrumentality of any violation by the Company or any of its
Subsidiaries of any legal requirement, which violation
together with all other such violations by the Company and its
Subsidiaries could reasonably be expected to have a material
adverse effect upon the business or properties of the Company
and its Subsidiaries taken as a whole or upon the ability of
any Borrower to perform its obligations under this Agreement
and, in the case of the Company, the Guaranty, describing the
nature of such Default, such Event of Default, such default or
such violation and what action the Company or such Subsidiary,
as the case may be, has taken or proposes to take with respect
thereto; and
(vi) Promptly after each annual meeting of the
Company's shareholders, an Officer's Certificate of the
election and incumbency of the Company's officers and
directors in form and substance satisfactory to the Banks.
All financial statements specified in clauses (i) and (ii) above shall
be furnished in consolidated form for the Company and its Consolidated
Subsidiaries. Investments by the Company in its Subsidiaries other than
its Consolidated Subsidiaries shall be accounted for on the equity
method. Together with each delivery of financial statements required by
clauses (i) and (ii) above, the Company will deliver to each Bank (y)
schedules and/or computations demonstrating that the Company is in
compliance with its covenants in Sections 5.02(a), 5.02(b), 5.02(c) and
5.02(g) or reflecting any noncompliance therewith as at the applicable
date and (z) an Officer's Certificate stating that there exists no
Event of Default or Default, or, if any Event of Default or Default
exists, stating the nature thereof, the period of existence thereof and
what action the Company or any other Borrower has taken or proposes to
take with respect thereto. Together with each delivery of financial
statements required by clause (i) above, the Company will deliver to
each such Bank a schedule of the principal amount of all obligations of
the Company covered by any Enhancement Agreement.
(b) Books and Records. Each Borrower shall maintain, and cause
each of its Subsidiaries to maintain, proper books of record and
account in accordance with generally accepted accounting practices.
(c) Insurance. Each Borrower shall maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible companies (or
by self insurance to the extent authorized by law) in such amounts and
against such risks as is customarily carried on comparable business and
properties, and furnish to the Banks, upon request by the
Administrative Agent or any Bank, an Officer's Certificate containing
full information as to the insurance carried and self insurance levels
maintained; and promptly after notice in writing from the
Administrative Agent obtain such additional insurance as the
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Administrative Agent may reasonably request and which is customarily
carried on comparable businesses or properties.
(d) Maintenance of Property. Each Borrower shall cause its
property and the property of its Subsidiaries to be maintained,
preserved, protected and kept in good repair, working order and
condition so that the business carried on in connection therewith may
be conducted properly and efficiently.
(e) Inspection of Property and Records. Upon reasonable
advance notice, each Borrower shall permit any Person designated by the
Administrative Agent or any of the Banks in writing to visit and
inspect any of the properties, corporate books and financial records of
such Borrower and its Subsidiaries and discuss their respective affairs
and finances with their principal officers, all at such times as the
Administrative Agent or such Bank may reasonably request.
(f) Existence, Laws, Obligations. The Company shall maintain
its corporate existence, comply and cause its Subsidiaries (except
Inactive Subsidiaries) to comply with all applicable statutes and
governmental regulations, including all applicable environmental
statutes and regulations (except those the validity or applicability of
which the Company shall be contesting in good faith and by appropriate
proceedings diligently conducted for which such reserves or other
appropriate provisions, if any, as shall have been required by GAAP,
have been made), where the failure to so comply would have a material
adverse effect on the business, operations, property or condition of
the Company and its Subsidiaries taken as a whole or upon the ability
of any Borrower to perform its obligations under this Agreement and, in
the case of the Company, the Guaranty, and pay and cause its
Subsidiaries (except Inactive Subsidiaries) to pay all taxes,
assessments, governmental charges, claims for labor, supplies, rent and
other obligations which if unpaid might become a Lien against the
property of the Company or such Subsidiary (except Inactive
Subsidiaries), and where the failure to make such payment or where the
creation of such Lien would have a material adverse effect on the
business, operations, property, or condition of the Company and its
Subsidiaries taken as a whole or upon the ability of any Borrower to
perform its obligations under this Agreement and, in the case of the
Company, the Guaranty, except any of the foregoing liabilities being
contested in good faith by appropriate proceedings diligently conducted
for which such reserves or other appropriate provisions, if any, as
shall have been required by GAAP, have been made.
SECTION 5.02. Negative Covenants. So long as any Loan shall
remain unpaid or any Bank shall have any Commitment hereunder, without the
written consent of the Majority Banks:
(a) Net Worth. The Company will not permit Net Worth at any
time to be less than $1,100,000,000.
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(b) Debt. The Company will not permit the ratio of
Consolidated Debt to Total Capitalization at any time to be greater
than .65 to 1.0.
(c) Liens, Etc. The Company will not, and will not permit any
of its Subsidiaries to, incur any Liabilities secured by a Lien upon
any of the assets of the Company or any such Subsidiary or upon any
shares of stock or any long-term receivable of the Company due from any
of its Subsidiaries (whether such assets, shares of stock or long-term
receivables are now owned or hereafter acquired) without in any such
case effectively providing concurrently with the incurrence of any such
Liability that all sums payable at that time or thereafter under this
Agreement and the Guaranty (together with, if the Company shall so
determine, any other Liabilities of the Company or such Subsidiary then
existing or thereafter created which is not subordinate to such sums)
shall be secured equally and ratably with (or at the option of the
Company, prior to) such Liability, so long as such Liability shall be
so secured; provided, however, that nothing in this Section 5.02(c)
shall prevent, restrict or apply to (and there shall be excluded from
secured Debt in any computation under this Section 5.02(c)) Liabilities
secured by):
(i) Liens for taxes, assessments, or similar charges,
incurred in the ordinary course of business that are not yet
past due or which are being contested by the Company or such
Subsidiary in good faith and against which adequate reserves
as required by GAAP have been established by the Company or
such Subsidiary, as the case may be;
(ii) Pledges or deposits made in the ordinary course
of business to secure payment of worker's compensation, or to
participate in any fund in connection with worker's
compensation, unemployment insurance, old-age pensions or
other social security programs;
(iii) Liens of mechanics, materialmen, repairmen,
warehousemen, carriers or other like Liens, securing
obligations incurred in the ordinary course of business that
are not yet past due or which are being contested by the
Company or such Subsidiary in good faith and against which
adequate reserves as required by GAAP have been established by
the Company or such Subsidiary, as the case may be;
(iv) Liens which secure Liabilities owing by a
Subsidiary of the Company to the Company or to another
Subsidiary of the Company;
(v) Deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business;
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(vi) Easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from
the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the
Company or such Subsidiary; and
(vii) Liens not otherwise permitted under this
Section 5.02(c) which secure Liabilities permitted hereunder
not exceeding, as to the Company and its Consolidated
Subsidiaries, 10% of Consolidated Assets at any time
outstanding.
(d) Stock of Subsidiaries, Merger, Sale of Assets, Etc. The
Company will not permit any of its Subsidiaries to issue or dispose of
its stock (other than directors' qualifying shares) except to the
Company or to another Subsidiary of the Company, and the Company will
not and will not permit any of its Subsidiaries to sell or otherwise
dispose of any shares of stock of, or obligation (howsoever evidenced)
from, any Subsidiary of the Company, or to merge or consolidate with
any other corporation or sell, lease or transfer or otherwise dispose
of all or a substantial part of its assets (as distinguished from sales
of excess land and other assets in the ordinary course of business
which are permitted), whether in one transaction or a series of
transactions, provided, however, that so long as after giving effect
thereto no Default or Event of Default shall exist, the following
transactions shall be permitted pursuant to this Section 5.02(d):
(i) Any corporation including any Subsidiary of the
Company may merge or consolidate with the Company provided
that the Company shall be the continuing or surviving
corporation;
(ii) Any corporation may merge into or consolidate
with any Subsidiary of the Company provided that the
continuing or surviving corporation is a Subsidiary of the
Company;
(iii) Any Subsidiary of the Company may sell, lease,
transfer or otherwise dispose of any of its assets to the
Company or another Subsidiary of the Company;
(iv) Provident may sell, lease, transfer or otherwise
dispose of the stock or any assets of any Enforcement
Subsidiary in an arm's-length transaction;
(v) The Company may, with respect to any Acquisition,
effect a disposition of stock or assets to the extent required
pursuant to any agreement or consent order entered into
between the Company and the Federal Trade Commission in
connection with and as a condition to such Acquisition; and
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(vi) The Company or any of its Subsidiaries may sell
or otherwise dispose of the stock of, or all or substantially
all of the assets of, any of their respective Subsidiaries if,
after giving effect to such sale or other disposition the
aggregate amount of all such sales and dispositions by the
Company and its Subsidiaries (including all dispositions
pursuant to clause (vi) above) occurring on and after the
Execution Date to the date of such sale or disposition do not
exceed 10% of Consolidated Assets on the date of such sale or
disposition.
Consensual Liens granted by the Company or any of its Subsidiaries
permitted pursuant to Section 5.02(c) shall not constitute a
"disposition" for purposes of this Section 5.02(d) until such time as
holder of any such Lien forecloses or otherwise enforces such Lien.
(e) Change in Accounting Method. The Company will not and will
not permit any of its Subsidiaries to make any change in the method of
computing depreciation for financial statement purposes or any other
material change in accounting methods other than such changes as may be
required by the Financial Accounting Standards Board or the Securities
and Exchange Commission or to conform newly acquired Subsidiaries to
the Company's accounting methods. Upon making any such change, the
Company will promptly give the Banks notice thereof.
(f) Change of Business. The Company will not and will not
permit any of its Subsidiaries to engage in a line or lines of business
other than those being engaged in by the Company or one or more of its
existing Subsidiaries on the date of this Agreement and lines of
business related to the death care industry.
(g) Guaranties and Letters of Credit. The Company will not and
will not permit any Subsidiary of the Company to make or permit to
remain outstanding any Assurance or any Letter of Credit unless, after
giving effect thereto, the aggregate amount of all Assured Obligations
and Letter of Credit Obligations then outstanding shall not exceed 20%
of Net Worth, excluding, without duplication, the sum of the aggregate
outstanding amount of all Debt of the Company and its Subsidiaries
guaranteed by any such Assurances.
(h) ERISA. The Company will not at any time permit any Plan
to:
(i) Engage in any "prohibited transaction" as such
term is defined in Section 4975 of the Code or in Section 406
of ERISA for which there is no applicable exemption;
(ii) Incur any "accumulated funding deficiency" as
such term is defined in Section 302 of ERISA and Section 412
of the Code, whether or not waived;
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(iii) Be terminated under circumstances which are
likely to result in the imposition of a Lien on the property
of the Company or any member of the ERISA Group pursuant to
Section 4068 of ERISA, if and to the extent such termination
is within the control of the Company; or
(iv) Cease to comply in any material respect with the
provisions of the Code and ERISA applicable to such Plan,
if any event or condition described in clause (i), (ii), (iii) or (iv)
above is likely to subject the Company or any member of its ERISA Group
to a liability which, in the aggregate, is material in relation to the
business, operations, property or condition, financial or otherwise, of
the Company and the other members of its ERISA Group on a consolidated
basis.
(i) Restriction on Use of Proceeds. No Borrower nor any agent
acting on behalf of any Borrower has taken or will take any action, or
has suffered to exist or will suffer to exist any condition, that might
cause this Agreement or any Loan to violate Regulation G, Regulation U,
Regulation X, or any other regulation of the Board or to violate the
Securities Exchange Act of 1934, as amended, in each case as in effect
now or as the same may hereafter be in effect. No Borrower will use,
directly or indirectly, the proceeds of any Loan hereunder to acquire
any security (within the meaning of the Securities Exchange Act of
1934, as amended), in any tender offer subject to Section 13 or 14 of
the Securities Exchange Act of 1934, as amended, unless such tender
offer has been approved by the Board of Directors (or other analogous
body) of the issuer of the securities that are the subject of such
tender offer, so long as a majority of the directors (or members)
constituting such Board (or such body) were directors (or members) at
least 30 days prior to the making of such tender offer.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) Failure to Pay the Loans or the Guaranty. The Company or
any Borrowing Subsidiary shall fail to pay or prepay (i) any principal
of or interest on any Loan or, in the case of the Company, any of the
Guaranteed Obligations, when due under this Agreement or (ii) any other
amount due hereunder within ten days following the date on which
payment of such other amount is due; or
(b) Failure to Pay Certain Other Indebtedness. The Company or
any of its Subsidiaries does not pay principal of or interest on any
other Debt, Assured Obligation or
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Letter of Credit Obligation, in an amount of $10,000,000 or more, owed
to a financial institution, when due or within any grace period allowed
by such Debt, Assured Obligation or Letter of Credit Obligation, or if
the holder of such other Debt, Assured Obligation or Letter of Credit
Obligation declares, or may declare, such other Debt, Assured
Obligation or Letter of Credit Obligation due prior to its stated
maturity because of the Company's or such Subsidiary's default
thereunder unless such default is waived or cured within one business
day of its discovery; or
(c) Failure to Pay Other Indebtedness. The Company or any of
its Subsidiaries does not pay principal of or interest on any Debt,
Assured Obligation or Letter of Credit Obligation, in an amount of
$10,000,000 or more (except those described in Sections 6.01(a) and
6.01(b)) within five days after the date due (or within any longer
period of grace that may be allowed by the terms thereof) or if the
holder or holders (or a trustee on behalf of such holder or holders) of
such other obligation declares such Debt, Assured Obligation or Letter
of Credit Obligation due (or such Debt, Assured Obligation or Letter of
Credit Obligation becomes due without such declaration) prior to its
stated maturity because of the Company's or such Subsidiary's default
thereunder, provided that if the holder of any such Debt, Assured
Obligation or Letter of Credit Obligation accelerates the maturity
thereof and the Company or such Subsidiary promptly (and in any case
within 30 days following such acceleration) pays such Debt, Assured
Obligation or Letter of Credit Obligation, it shall not be in default
under this Section 6.01(c) by reason of such acceleration; or
(d) Misrepresentation. Any material representation or warranty
made or deemed made by or on behalf of the Company or any Borrowing
Subsidiary herein or in any writing furnished in connection with this
Agreement shall be false or misleading in any material respect when
made or deemed made or furnished; or
(e) Violation of Certain Covenants. The Company violates any
covenant, agreement or condition contained in Section 5.02; or
(f) Violation of Other Covenants. The Company or any Borrowing
Subsidiary violates any other covenant, agreement or condition
contained herein and such violation shall not have been remedied within
30 days after written notice shall have been given to the Company or
such Borrowing Subsidiary by the Administrative Agent; or
(g) Assignment for Benefit of Creditors. The Company or any of
its Material Subsidiaries makes an assignment for the benefit of
creditors; or
(h) Voluntary Bankruptcy. The Company or any of its Material
Subsidiaries applies to any tribunal for the appointment of a trustee
or receiver or custodian (or other Person performing similar duties) of
any substantial part of the assets of the Company or such
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Material Subsidiary, or commences any proceedings relating to the
Company or such Material Subsidiary under any bankruptcy,
reorganization, rearrangement, insolvency, readjustment of debt,
dissolution or other liquidation law of any jurisdiction; or
(i) Involuntary Bankruptcy. Any such application is filed, or
any such proceedings are commenced, against the Company or any of its
Material Subsidiaries, and the Company or such Material Subsidiary
indicates its approval, consent or acquiescence, or an order is entered
appointing such trustee or receiver or custodian, or adjudicating the
Company or any of its Material Subsidiaries bankrupt or insolvent, or
approving the petition in any such proceedings, and such order remains
in effect for 60 days; or
(j) Dissolution or Split-Up. Any order is entered in any
proceeding against the Company or any of its Subsidiaries (i) which
shall have contributed more than 15% of Consolidated Net Income during
the immediately preceding fiscal year or (ii) the tangible assets of
which shall have constituted more than 15% of Tangible Consolidated
Assets of the Company as at the end of the immediately preceding fiscal
year, decreeing the dissolution or split-up of the Company or such
Subsidiary, and such order remains in effect for 60 days; or
(k) Failure to Pay Dividend. The Company does not pay any
dividend on any of its capital stock as declared or permits any
dividend to accumulate on any of its capital stock in respect of which
cumulative dividends are provided for; or
(l) Undischarged Judgment. Final judgment for the payment of
money in excess of $10,000,000 shall be rendered against the Company or
any of its Subsidiaries and the same shall remain undischarged for a
period of 30 days during which execution shall not be effectively
stayed; or
(m) ERISA Default. The actuarial present value of unfunded
vested benefits under all Plans (other than multiemployer plans, as
defined in Section 3(37) of ERISA) shall exceed $10,000,000 (excluding
in such computation any Plan with assets greater than benefit
liabilities), or any one or more of the following events shall occur
with respect to a Plan or Plans and such occurrence (or occurrences, in
the aggregate) could result in liability of the Company or any of its
Subsidiaries to the PBGC or to the Plan or Plans in the aggregate
amount of $10,000,000 or more for the Company and such Subsidiaries
taken as a whole:
(i) Any finding or determination shall be made under
Section 4041(c) or (e) of ERISA;
(ii) Any fact or circumstance shall occur which, in
the reasonable opinion of the Majority Banks, provides grounds
for the commencement of any proceeding under Section 4042 of
ERISA;
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(iii) Any proceeding shall be commenced under Section
4042 of ERISA;
(iv) Any Plan termination; or
(v) Any full or partial withdrawal (as such terms are
defined in Title IV of ERISA);
then, (i) if any Event of Default described in Section 6.01(h) or
Section 6.01(i) shall occur and be continuing, all Loans then
outstanding hereunder and interest accrued thereon and all other
liabilities hereunder shall thereupon become and be immediately due and
payable without presentment, demand, protest, notice of intent to
accelerate, or other notice of any kind to any Borrower or any other
Person, all of which are hereby expressly waived by each Borrower, the
Commitments shall thereupon immediately terminate and the Banks shall
be under no further obligation to make Loans hereunder, and (ii) if any
other Event of Default shall occur and be continuing, the
Administrative Agent shall (A) if requested by the Majority Banks, by
notice to the Borrowers, terminate the Commitments and they shall
thereupon immediately terminate and (B) if requested by the Majority
Banks, by notice to the Borrowers, declare all Loans then outstanding
hereunder and interest accrued thereon and all other liabilities of the
Borrowers hereunder and under the Agent's Fee Letter to be immediately
due and payable, and the same shall thereupon become and be forthwith
due and payable without presentment, demand, protest, notice of intent
to accelerate, or other notice of any kind to any Borrower or any other
Person, all of which are hereby expressly waived by each Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Subject to Section
7.06, each Bank hereby irrevocably appoints and authorizes the Administrative
Agent to act on its behalf and to exercise such powers under this Agreement and
the Guaranty as are specifically delegated to or required of the Administrative
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including enforcement or collection of the Loans) or the
Guaranty, the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks, and such instructions shall be
binding upon all Banks; provided, however, that the Administrative Agent shall
not be required to take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement, the Guaranty or
applicable law.
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SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or the Loans (a) with the consent or at the
request of the Majority Banks or (b) in the absence of its or their own gross
negligence or willful misconduct (IT BEING THE EXPRESS INTENTION OF THE PARTIES
THAT THE ADMINISTRATIVE AGENT AND ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES
SHALL HAVE NO LIABILITY FOR ACTIONS AND OMISSIONS UNDER THIS SECTION 7.02
RESULTING FROM THEIR SOLE ORDINARY OR CONTRIBUTORY NEGLIGENCE). Without
limitation of the generality of the foregoing, the Administrative Agent: (i) may
treat the original holder, or the holder named in the most recent notice of
assignment received by it pursuant to this Section 7.02, as the case may be, of
each Loan as the holder thereof until the Administrative Agent receives written
notice of the assignment or transfer thereof signed by such holder and in form
satisfactory to the Administrative Agent; (ii) may consult with legal counsel
(including counsel for any Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Bank
and shall not be responsible to any Bank for any statements, warranties or
representations made in or in connection with this Agreement or any Loan; (iv)
except as otherwise expressly provided herein, shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or to inspect the property (including
the books and records) of any Borrower; (v) shall not be responsible to any Bank
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in respect of this
Agreement or any Loan by acting upon any notice, consent, certificate or other
instrument or writing (which may be by facsimile transmission) reasonably
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Administrative Agent and Affiliates; Chase and
Affiliates. Without limiting the right of any other Bank to engage in any
business transactions with the Borrowers or any of its Affiliates, with respect
to their Commitments and the Loans, if any, made by them, Chase and each other
Bank that may become the Administrative Agent shall have the same rights and
powers under this Agreement and its Loans as any other Bank and may exercise the
same as though it were not the Administrative Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include Chase and any such
other Bank, in their individual capacities. Chase, each other Person who becomes
the Administrative Agent and their respective Affiliates may be engaged in, or
may hereafter engage in, one or more loans, letters of credit, leasing or other
financing activities not the subject of this Agreement (collectively, the "Other
Financings") with any Borrower or any of its Affiliates, or may act as trustee
on behalf of, or depositary for, or otherwise engage in other business
transactions with, any Borrower or any of its Affiliates (all Other Financings
and other such business transactions being collectively, the "Other Activities")
with no responsibility to account therefor to the Banks. Without limiting the
rights and remedies of the Banks specifically set forth herein, no other Bank by
virtue of being a Bank hereunder shall have any interest in (a) any Other
Activities, (b) any present or future guarantee by or for the account of any
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Borrower not contemplated or included herein, (c) any present or future offset
exercised by the Administrative Agent in respect of any such Other Activities,
(d) any present or future property taken as security for any such Other
Activities or (e) any property now or hereafter in the possession or control of
the Administrative Agent which may be or become security for the obligations of
any Borrower or any of its Affiliates hereunder and under the Loans by reason of
the general description of indebtedness secured, or of property contained in any
other agreements, documents or instruments related to such Other Activities;
provided, however, that if any payment in respect of such guarantees or such
property or the proceeds thereof shall be applied to reduction of the
obligations hereunder, then each Bank shall be entitled to share in such
application according to its pro rata portion of such obligations.
SECTION 7.04. Bank Credit Decision. Each Bank acknowledges and
agrees that it has, independently and without reliance upon the Administrative
Agent or any other Bank and based on the financial statements referred to in
Section 4.07 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges and agrees that it will, independently
and without reliance upon the Administrative 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 action under
this Agreement.
SECTION 7.05. Administrative Agent's Indemnity. The
Administrative Agent shall not be required to take any action hereunder or to
prosecute or defend any suit in respect of this Agreement or the Loans unless
indemnified to the Administrative Agent's satisfaction by the Banks against
loss, cost, liability and expense. If any indemnity furnished to the
Administrative Agent shall become impaired, it may call for additional indemnity
and cease to do the acts indemnified against until such additional indemnity is
given. In addition, the Banks agree to indemnify the Administrative Agent (to
the extent not reimbursed by the Borrowers), ratably according to the respective
aggregate principal amounts of the Committed Loans then owing to each of them
(or if no Committed Loans are at the time outstanding, ratably according to the
respective aggregate amounts of their Commitments, or if no Commitments are
outstanding, the respective aggregate amounts of the Commitments immediately
prior to the time the Commitments ceased to be outstanding), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Administrative Agent under this Agreement
(including any action taken or omitted under Article II). Without limitation of
the foregoing, each Bank agrees to reimburse the Administrative Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
reasonable counsel fees) incurred by the Administrative Agent in connection with
the preparation, execution, administration, or enforcement of, or legal advice
in respect of rights or responsibilities under, this Agreement to the extent
that the Administrative Agent is not reimbursed for such expenses by the
Borrowers. The provisions of this Section 7.05 shall survive the termination of
this Agreement and/or the payment or assignment of
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any of the Loans. NOTWITHSTANDING THE FOREGOING, NO BANK SHALL BE LIABLE UNDER
THIS SECTION 7.05 TO THE ADMINISTRATIVE AGENT FOR ANY PORTION OF SUCH
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, EXPENSES OR DISBURSEMENTS DUE TO THE ADMINISTRATIVE AGENT RESULTING FROM
THE ADMINISTRATIVE AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EACH BANK
AGREES, HOWEVER, THAT IT EXPRESSLY INTENDS, UNDER THIS SECTION 7.05, TO
INDEMNIFY THE ADMINISTRATIVE AGENT RATABLY AS AFORESAID FOR ALL SUCH
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, EXPENSES AND DISBURSEMENTS ARISING OUT OF OR RESULTING FROM THE
ADMINISTRATIVE AGENT'S SOLE, ORDINARY OR CONTRIBUTORY NEGLIGENCE.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written notice thereof to
the Banks and the Borrowers and may be removed as Administrative Agent under
this Agreement at any time, with or without cause, by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Majority Banks, and shall have accepted such
appointment, within 30 calendar days after the retiring Administrative Agent's
giving of notice of resignation or the Majority Banks' removal of the retiring
Administrative Agent, 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
$500,000,000. Upon the acceptance of any 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, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's resignation or removal
as Administrative Agent hereunder, the provisions of this Article VII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
SECTION 7.07. Notice of Default. The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Administrative Agent shall have
received notice from a Bank or a Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." If the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Banks; provided, however,
if such notice is received from a Bank, the Administrative Agent also shall give
notice thereof to the Company. The Administrative Agent shall be entitled to
take action or refrain from taking action with respect to such Default or Event
of Default as provided in Section 7.01 and Section 7.02.
SECTION 7.08. No Duty of Co-Agents. No Co-Agent shall have any
duties, responsibilities or liabilities in such capacity with respect to the
administration or enforcement of this Agreement.
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ARTICLE VIII
GUARANTY
In consideration of the premises and in order to induce the
Banks to make Loans hereunder to the Borrowing Subsidiaries:
SECTION 8.01. Guaranty. The Company hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of each Borrowing
Subsidiary to pay the principal of and interest on the Loans owed by such
Borrowing Subsidiary (including interest accruing or becoming owing both prior
to and subsequent to the commencement of any proceeding against or with respect
to such Borrowing Subsidiary under any chapter of the Bankruptcy Code of 1978
(11 U.S.C. ss. 101 et seq.), as from time to time amended, or any similar
statute in any other jurisdiction, whether or not such interest may be the
subject of an allowable claim in such proceeding), and all other amounts from
time to time payable by such Borrowing Subsidiary under this Agreement,
including the Foreign Currency Loans made pursuant to the terms of any Foreign
Currency Addendum (such obligations with respect to the Borrowing Subsidiaries
being herein called the "Guaranteed Obligations"), and agrees to pay any and all
reasonable costs and expenses incurred by each Bank and the Administrative Agent
in enforcing any rights under this guaranty (including the reasonable fees and
expenses of outside counsel or the reasonable allocated costs of in-house
counsel). This guaranty is an absolute, irrevocable, unconditional, present and
continuing guaranty of payment and not of collectibility and is in no way
conditioned or contingent upon any attempt to collect from any Borrowing
Subsidiary, or any other action, occurrence or circumstance whatsoever.
SECTION 8.02. Guaranty Absolute. The Company guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Loans owed by the Borrowing Subsidiaries. The Company
agrees that the Guaranteed Obligations, this Agreement, the Foreign Currency
Addenda and all other instruments and agreements applicable to the Company and
the Borrowing Subsidiaries (this Agreement and all such other instruments and
agreements being hereinafter referred to in this Article VIII as the
"Documents") may be extended or renewed, and Loans repaid and reborrowed in
whole or in part, without notice to or assent by the Company, and that it will
remain bound upon this guaranty notwithstanding any extension, renewal or other
alteration of any Guaranteed Obligations or Documents, or any repayment and
reborrowing of Loans. To the maximum extent permitted by applicable law, except
as expressly provided in this Agreement, the obligations of the Company under
this guaranty shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms hereof under any circumstances
whatsoever, including:
(a) any extension, renewal, modification, settlement,
compromise, waiver or release in respect of any Guaranteed Obligations;
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(b) any extension, renewal, amendment, modification,
rescission, waiver or release in respect of any of the Documents;
(c) any release, exchange, substitution, non-perfection or
invalidity of, or failure to exercise rights or remedies with respect
to, any direct or indirect security for any Guaranteed Obligations,
including the release of any Borrowing Subsidiary or other Person
liable on any Guaranteed Obligations;
(d) any change in the corporate existence, structure or
ownership of the Company, any Borrowing Subsidiary or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Company, any Borrowing Subsidiary or any of their respective assets;
(e) the existence of any claim, defense, set-off or other
rights or remedies which any Borrowing Subsidiary at any time may have
against the Company, or the Company or such Borrowing Subsidiary may
have at any time against the Administrative Agent, any Bank, any other
Borrowing Subsidiary or any other Person, whether in connection with
this Agreement, the other Documents, the transactions contemplated
thereby or any other transaction other than by the payment in full by
the Borrowing Subsidiaries of the Guaranteed Obligations after the
termination of the Commitments of the Banks;
(f) any invalidity or unenforceability for any reason of this
Agreement or any other Document, or any provision of law purporting to
prohibit the payment or performance by the Company or any Borrowing
Subsidiary of the Guaranteed Obligations or the Documents, or of any
other obligation to the Administrative Agent or any Bank; or
(g) any other circumstances or happening whatsoever, whether
or not similar to any of the foregoing.
SECTION 8.03. Effect of Debtor Relief Laws. If after receipt
of any payment of, or proceeds of any security applied (or intended to be
applied) to the payment of all or any part of the Guaranteed Obligations, the
Administrative Agent or any Bank is for any reason compelled to surrender or
voluntarily surrenders, such payment or proceeds to any Person (a) because such
payment or application of proceeds is or may be avoided, invalidated, declared
fraudulent, set aside, determined to be void or voidable as a preference,
fraudulent conveyance, fraudulent transfer, impermissible set-off or a diversion
of trust funds or (b) for any other reason, including (i) any judgment, decree
or order of any court or administrative body having jurisdiction over the
Administrative Agent, any Bank or any of their respective properties or (ii) any
settlement or compromise of any such claim effected by the Administrative Agent
or any Bank with any such claimant (including any Borrowing Subsidiary), then
the Guaranteed Obligations or part thereof intended to be satisfied shall be
reinstated and continue, and this guaranty shall continue in full force as if
such payment or proceeds had not been received, notwithstanding any revocation
thereof or the
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cancellation of any instrument evidencing any Guaranteed Obligations or
otherwise; and the Company shall be liable to pay the Administrative Agent and
the Banks, and hereby does indemnify the Administrative Agent and the Banks and
hold them harmless for the amount of such payment or proceeds so surrendered and
all expenses (including reasonable attorneys' fees, court costs and expenses
attributable thereto) incurred by the Administrative Agent or any Bank in the
defense of any claim made against it that any payment or proceeds received by
the Administrative Agent or any Bank in respect of all or part of the Guaranteed
Obligations must be surrendered. The provisions of this paragraph shall survive
the termination of this Agreement, and any satisfaction and discharge of the
Borrowing Subsidiaries by virtue of any payment, court order or any federal or
state law.
SECTION 8.04. Subrogation. Notwithstanding any payment or
payments made by the Company hereunder, or any set-off or application by the
Administrative Agent or any Bank of any security or of any credits or claims,
the Company will not assert or exercise any rights of the Administrative Agent
or any Bank or of the Company against any Borrowing Subsidiary to recover the
amount of any payment made by the Company to the Administrative Agent or any
Bank hereunder by way of any claim, remedy or subrogation, reimbursement,
exoneration, contribution, indemnity, participation or otherwise arising by
contract, by statute, under common law or otherwise, and the Company shall not
have any right of recourse to or any claim against assets or property of any
Borrowing Subsidiary, until all of the obligations of the Company and the
Borrowing Subsidiaries under the Documents are paid in full. If any amount shall
nevertheless be paid to the Company by a Borrowing Subsidiary prior to payment
in full of the obligations of the Company and such Borrowing Subsidiary under
the Documents, such amount shall be held in trust for the benefit of the
Administrative Agent and the Banks and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations,
whether matured or unmatured. The provisions of this paragraph shall survive the
termination of this Agreement, and any satisfaction and discharge of the
Borrowing Subsidiaries by virtue of any payment, court order or any federal or
state law.
SECTION 8.05. Subordination. If the Company becomes the holder
of any indebtedness payable by a Borrowing Subsidiary, the Company hereby
subordinates all indebtedness owing to it from such Borrowing Subsidiary to all
indebtedness of such Borrowing Subsidiary to the Administrative Agent and the
Banks, and agrees that during the continuance of any Default or Event of Default
it shall not accept any payment on the same until payment in full of the
obligations of such Borrowing Subsidiary under this Agreement and the other
Documents after the termination of the Commitments of the Banks, and shall in no
circumstance whatsoever attempt to set-off or reduce any obligations hereunder
because of such indebtedness. If any amount shall nevertheless be paid to the
Company by a Borrowing Subsidiary prior to payment in full of the Guaranteed
Obligations, such amount shall be held in trust for the benefit of the
Administrative Agent and the Banks and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations,
whether matured or unmatured.
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SECTION 8.06. Waiver. The Company hereby waives promptness,
diligence, notice of acceptance and, to the extent permitted by law, any other
notice with respect to any of the Guaranteed Obligations and this guaranty and
waives presentment, demand of payment, notice of intent to accelerate, notice of
dishonor or nonpayment and any requirement that the Administrative Agent or any
Bank institute suit, collection proceedings or take any other action to collect
the Guaranteed Obligations, including any requirement that the Administrative
Agent or any Bank protect, secure, perfect or insure any Lien against any
property subject thereto or exhaust any right or take any action against any
Borrowing Subsidiary or any other Person or any collateral (it being the
intention of the Administrative Agent, the Banks and the Company that this
guaranty is to be a guaranty of payment and not of collection). It shall not be
necessary for the Administrative Agent or any Bank, in order to enforce any
payment by the Company hereunder, to institute suit or exhaust its rights and
remedies against any Borrowing Subsidiary or any other Person, including others
liable to pay any Guaranteed Obligations, or to enforce its rights against any
security ever given to secure payment thereof. The Company hereby expressly
waives to the maximum extent permitted by applicable law each and every right to
which it may be entitled by virtue of the suretyship laws of the State of Texas,
including any and all rights it may have pursuant to Rule 31, Texas Rules of
Civil Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code
and Chapter 34 of the Texas Business and Commerce Code. The Company hereby
waives marshaling of assets and liabilities, notice by the Administrative Agent
or any Bank of any indebtedness or liability to which such Bank applies or may
apply any amounts received by such Bank, and of the creation, advancement,
increase, existence, extension, renewal, rearrangement or modification of the
Guaranteed Obligations. The Company expressly waives, to the extent permitted by
applicable law, the benefit of any and all laws providing for exemption of
property from execution or for valuation and appraisal upon foreclosure.
SECTION 8.07. Full Force and Effect. This Guaranty is a
continuing guaranty and shall remain in full force and effect until all of the
obligations of the Company and the Borrowing Subsidiaries under this Agreement
and the other Documents and all other amounts payable under this guaranty have
been paid in full (after the termination of the Commitments of the Banks). All
rights, remedies and powers provided in this guaranty may be exercised, and all
waivers contained in this guaranty may be enforced, only to the extent that the
exercise or enforcement thereof does not violate any provisions of applicable
law which may not be waived.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Company
herefrom, shall in any event (except as contemplated by Section 2.03(j) be
effective unless the same shall be in writing and signed by the Majority Banks
in all cases, and then, in any case, such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no
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amendment, waiver or consent shall, unless in writing and signed by each Bank
affected thereby, do any of the following: (a) change the definitions of
"Applicable Differential," "Applicable Fee Percentage" or "Majority Banks"
contained in Section 1.01, (b) except as expressly provided in Section 2.14(f)
or Section 2.15(c), reduce or increase the amount or alter the terms of the
Commitments of any Banks or subject any Banks to any additional obligations, (c)
reduce or forgive the principal of, or rate or amount of interest applicable to,
any Loan other than as provided in this Agreement, or any fees hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Loans or any fees hereunder, (e) change Section 4.13, this Section 9.01, the
last sentence of Section 9.11(a) or Article VIII, (f) 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 hereunder or (g) release the Guaranty; and provided that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Banks required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement.
SECTION 9.02. Notices, Etc. The Administrative Agent, any
Bank, or the holder of any Loan, giving consent or notice or making any request
of any Borrower provided for hereunder, shall notify each Bank and the
Administrative Agent thereof. In the event that the holder of any Loan
(including any Bank) shall transfer such Loan, it shall promptly so advise the
Administrative Agent which shall be entitled to assume conclusively that no
transfer of any Loan has been made by any holder (including any Bank) unless and
until the Administrative Agent receives written notice to the contrary. Notices,
consents, requests, approvals, demands and other communications (collectively
"Communications") provided for or required herein shall be in writing (including
facsimile Communications) and mailed, sent by facsimile transmission or
delivered:
(a) If to any Borrower, to it:
c/o Service Corporation International
1929 Allen Parkway
P.O. Box 130548
Houston, Texas 77019-0548
Telecopy Number: (713) 525-9067
Attention: Secretary
(b) If to the Administrative Agent, to it at:
Chase Agent Services
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Telephone Number: (212) 552-7953
Telecopy Number: (212) 552-5658
Attention: Sandra Miklave
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with a copy to:
Texas Commerce Bank National Association
707 Travis Street, 5TCBE 78
Houston, Texas 77002
Telephone Number: (713) 216-5319
Telecopy Number: (713) 216-7500
Attention: Jan Danvers
(c) If to any Bank, as specified on the signature page for
such Bank hereto or, in the case of any Person who becomes a Bank after
the date hereof, as specified on the signature page of the Assignment
and Acceptance executed by such Bank, or as to any party, such other
address or facsimile number as such party may hereafter specify for
such purpose in a Communication to the other parties hereto.
(d) All Communications shall, when mailed, sent by facsimile
transmission or delivered, be effective when deposited in the mails to
any party at its address specified above, on the signature page hereto,
or on the signature page of such Assignment and Acceptance (or other
address designated by such party to the other parties hereto) or sent
by facsimile transmission to any party to the facsimile transmission
number as set forth herein or on the signature pages hereto, or on the
signature pages of such Assignment and Acceptance (or other facsimile
number designated by such party in a Communication to the other parties
hereto) or delivered personally to any party at its address specified
above, on the signature page hereof or on the signature page of such
Assignment and Acceptance (or other address designated by such party in
a Communication to the other parties hereto; provided, however,
Communications to the Administrative Agent pursuant to Article II or
Article VII shall not be effective until received by the Administrative
Agent; and provided, further, that each Borrower shall indemnify each
of the Administrative Agent and the Banks against any costs, claim,
loss, expense (including legal fees) or liability which any of them may
sustain or incur as a consequence of any facsimile notice or
communication originating from such Borrower not being actually
received by or delivered to the intended recipient thereof or any
facsimile communication purporting to originate from such Borrower
being made or delivered fraudulently.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Bank or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, or any abandonment or discontinuance of any
steps to enforce such right, preclude any other or further exercise thereof or
the exercise of any other right. No notice to or demand on any Borrower in any
case shall entitle such Borrower to any other or further notice or demand in
similar or other circumstances. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
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SECTION 9.04. Costs, Expenses and Taxes. The Company agrees to
pay on demand: (a) all reasonable costs and expenses of the Administrative Agent
in connection with the preparation, execution, delivery and administration of
this Agreement and the other documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto and with respect to advising the Administrative Agent
as to its rights and responsibilities under this Agreement, and any
modification, supplement or waiver of any of the terms of this Agreement or any
modification or extension of the Loans, and (b) all reasonable costs and
expenses of each of the Banks and the Administrative Agent (including reasonable
counsel fees and expenses of outside counsel and the reasonable allocated costs
of in-house legal services) in connection with the enforcement of this Agreement
and the Loans. In addition, unless prohibited by applicable law, the Company
shall pay any and all stamp, mortgage and similar taxes payable or determined to
be payable in connection with the execution and delivery or enforcement of this
Agreement and the Loans and the other documents to be delivered hereunder, and
agrees to save the Administrative Agent and each Bank harmless from and against
any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery or enforcement of this
Agreement. Without prejudice to the survival of any other obligations of the
Company hereunder, the obligations of the Company under this Section 9.04 shall
survive the termination of this Agreement and the payment or assignment of the
Loans.
SECTION 9.05. Indemnity. (a) The Company shall indemnify the
Administrative Agent, the Banks and each Affiliate thereof and their respective
directors, officers, employees and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims and damages to which any of
them may become subject, insofar as such losses, liabilities, claims and damages
arise out of or result from (i) any actual or proposed use by any Borrower of
the proceeds of any extension of credit by any Bank hereunder or (ii) any
investigation, litigation or other proceeding (including any threatened
investigation or proceeding) relating to the foregoing, and the Company shall
reimburse the Administrative Agent and each Bank, and each Affiliate thereof and
their respective directors, officers, employees and agents, upon demand for any
expenses (including legal fees) reasonably incurred in connection with any such
investigation or proceeding; but excluding any such losses, liabilities, claims,
damages or expenses incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified.
(b) WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT, IT IS
THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE INDEMNIFIED
HEREUNDER OR THEREUNDER SHALL BE INDEMNIFIED AND HELD HARMLESS AGAINST ANY AND
ALL LOSSES, LIABILITIES, CLAIMS AND DAMAGES ARISING OUT OF OR RESULTING FROM THE
ORDINARY, SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH PERSON. Without prejudice to
the survival of any other obligations of the Company hereunder, the obligations
of the Company under this Section 9.05 shall survive the termination of this
Agreement and the payment or assignment of the Loans.
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SECTION 9.06. Right of Setoff. If any Event of Default shall
have occurred and be continuing, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Bank or any
branch, subsidiary or Affiliate of such Bank to or for the credit or the account
of the Company and each Borrowing Subsidiary against any of and all the
obligations of the Company or such Borrowing Subsidiary now or hereafter
existing under this Agreement and any Loan held by such Bank, irrespective of
whether or not such Bank or the Administrative Agent shall have made any demand
under this Agreement and although such obligations may be unmatured. Each Bank
agrees promptly to notify the Borrower as to which such setoff and application
was made after any such setoff and application made by such Bank, but the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Bank under this Section 9.06 are in addition to
other rights and remedies (including other rights of setoff) which such Bank may
have.
SECTION 9.07. Governing Law. This Agreement and all other
documents executed in connection herewith (including the Foreign Currency
Addenda, each Assignment and Acceptance and each Borrowing Subsidiary
Counterpart), shall be deemed to be contracts and agreements executed by the
Borrowers, the Administrative Agent and the Banks party thereto under the laws
of the State of New York and of the United States and for all purposes shall be
construed in accordance with, and governed by, the laws of said state and of the
United States. Without limitation of the foregoing, nothing in this Agreement or
in any such other agreement shall be deemed to constitute a waiver of any rights
which any Bank may have under applicable federal legislation relating to the
amount of interest which such Bank may contract for, take, receive, reserve or
charge in respect of any Loans, including any right to contract for, take,
receive, reserve and charge interest at the rate allowed by the law of the state
where such Bank is located.
SECTION 9.08. Interest. Anything in this Agreement to the
contrary notwithstanding, no Borrower shall ever be required to pay unearned
interest on any Loan and shall never be required to pay interest on such Loan at
a rate in excess of the Highest Lawful Rate, and if the effective rate of
interest which would otherwise be payable under this Agreement and such Loan
would exceed the Highest Lawful Rate, or if the holder of such Loan shall
receive any unearned interest or shall receive monies that are deemed to
constitute interest which would increase the effective rate of interest payable
by such Borrower under this Agreement and such Loan to a rate in excess of the
Highest Lawful Rate, then (a) the amount of interest which would otherwise be
payable by such Borrower under this Agreement and such Loan shall be reduced to
the amount allowed under applicable law; and (b) any unearned interest paid by
such Borrower or any interest paid by such Borrower in excess of the Highest
Lawful Rate shall be credited on the principal of such Loan. It is further
agreed that all calculations of the rate of interest contracted for, charged or
received by any Bank under the Loans made by it, or under this Agreement, which
are made for the purpose of determining whether such rate exceeds the Highest
Lawful Rate applicable to such Bank (such Highest Lawful Rate being such Bank's
"Maximum Permissible Rate"), shall be made, to the
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extent permitted by usury laws applicable to such Bank (now or hereafter
enacted), by amortizing, prorating and spreading in equal parts during the
period of the full stated term of the Loans all interest at any time contracted
for, charged or received by such Bank in connection therewith. If at any time
and from time to time (y) the amount of interest payable to any Bank on any date
shall be computed at such Bank's Maximum Permissible Rate pursuant to this
Section 9.08 and (z) in respect of any subsequent interest computation period
the amount of interest otherwise payable to such Bank would be less than the
amount of interest payable to such Bank computed at such Bank's Maximum
Permissible Rate, then the amount of interest payable to such Bank in respect of
such subsequent interest computation period shall continue to be computed at
such Bank's Maximum Permissible Rate until the total amount of interest payable
to such Bank shall equal the total amount of interest which would have been
payable to such Bank if the total amount of interest had been computed without
giving effect to this Section 9.08.
SECTION 9.09. Survival of Representations, Warranties and
Covenants. All representations, warranties and covenants contained herein or
made in writing by the Borrowers in connection herewith shall survive the
execution and delivery of this Agreement, and will bind and inure to the benefit
of the respective successors and assigns of the parties hereto, whether so
expressed or not, provided, that the undertaking of the Banks to make Loans to
the Borrowers shall not inure to the benefit of any successor or assign of any
Borrower.
SECTION 9.10. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Company and the Administrative
Agent and when the Administrative Agent shall have been notified by each Bank
that such Bank has executed it and, except as provided in Section 9.09,
thereafter shall be binding upon and inure to the benefit of the Company, any
Borrowing Subsidiaries that may become party hereto, the Administrative Agent
and each Bank and their respective successors and assigns.
SECTION 9.11. Successors and Assigns; Participations. (a)
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and permitted assigns of
such party; and all covenants, promises and agreements by or on behalf of the
Company, the Administrative Agent or the Banks that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
permitted assigns. No Borrower may assign or transfer any of its rights or
obligations hereunder without the written consent of all the Banks.
(b) Each Bank, without the consent of the Company, may sell
participations to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitments and the Loans owing
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to it); provided, however, that (i) the selling Bank's obligations under this
Agreement shall remain unchanged; (ii) such Bank shall remain solely responsible
to the other parties hereto for the performance of such obligations; (iii) the
participating banks or other entities shall be entitled to the cost protection
provisions contained in Article II and Section 9.04; and (iv) the Borrowers, the
Administrative Agent and the other Banks shall continue to deal solely and
directly with the selling Bank in connection with such Bank's rights and
obligations under this Agreement; provided, however, that each Bank shall retain
the sole right and responsibility to enforce the obligations of the Borrowers
relating to the Loans including the right to approve any amendment, modification
or waiver of any provision of this Agreement; and further provided, however, the
selling Bank may grant a participant voting rights with respect to (x)
amendments, modifications or waivers with respect to any fees payable hereunder
(including the amount and the dates fixed for the payment of any such fees) or
the amount of principal or the rate of interest payable on, or the dates fixed
for any payment of principal of or interest on, the Loans and (y) amendments,
modifications or waivers to, or release of, the Guaranty. Each Bank shall
provide the Company with prompt notice of the identity of each participating
bank to which a participation in its Commitment or any Committed Loan is sold
and the amount of such participation.
(c) With the prior consent of the Company and the
Administrative Agent, such consent not to be unreasonably withheld, a Bank may
assign to one or more Eligible Assignees (provided, however, no such consent
shall be required if such Eligible Assignee is a Bank or an Affiliate of a Bank)
and, without the consent of the Company or the Administrative Agent, a Bank may
assign to one of its Affiliates, all or a portion of its interests, rights, and
obligations under this Agreement (including all or a portion of its Commitments
and the same portion of the Loans at the time owing to it); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and obligations under this
Agreement and partial assignments shall (except in the case of assignments to an
Affiliate of such Bank or to other Banks), be in a minimum principal amount of
$5,000,000 and (ii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register (as defined below), an Assignment and Acceptance substantially in the
form of Exhibit 9.11 (an "Assignment and Acceptance"), together with a properly
completed Administrative Questionnaire from such Eligible Assignee, and a
processing and recordation fee of $2,000; provided, however, no Borrower shall
have any obligation to pay or reimburse any Person for the payment of such
processing and recordation fee, except for assignments pursuant to Section 2.14
or Section 2.15. The Eligible Assignee party to each Assignment and Acceptance
also shall deliver a copy of its Administrative Questionnaire to the Company.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof (unless
otherwise provided in such Assignment and Acceptance) (x) the Eligible Assignee
thereunder shall be a party
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hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Bank hereunder and (y) the assignor Bank thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto, provided, however, such Bank shall have the benefits of Section 2.14,
Section 2.20, Section 9.04 and Section 9.05).
(d) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the Eligible Assignee confirm to and agree with
each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim known to
such Bank assignor, such Bank assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any other
instrument or document furnished pursuant hereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; (ii) such Bank
assignor makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the performance or
observance of its respective obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such Eligible Assignee
confirms that it has received a copy of this Agreement together with copies of
the most recent financial statements delivered pursuant to Section 4.07 or
Section 5.01(a) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such Eligible Assignee will, independently and
without reliance upon the Administrative Agent, such Bank assignor 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
action under this Agreement; (v) such Eligible Assignee appoints and authorizes
the Administrative Agent to take such action on behalf of such Eligible Assignee
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; (vi) such Eligible Assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Bank and (vii) such
Eligible Assignee confirms that it is an Eligible Assignee as defined herein.
(e) The Administrative Agent shall maintain at its office a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks and the Commitments of, and
principal amount of the Loans owing to, each Bank from time to time (the
"Register"). The entries in the Register shall, to the extent permitted
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by law, be conclusive, in the absence of manifest error, and each Borrower, the
Administrative Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by any Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an Eligible Assignee and, if required, the written
consent to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is substantially in the form of Exhibit
9.11, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Banks and the Borrowers.
(g) Notwithstanding any other provision herein, any Bank may,
in connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 9.11 disclose to the assignee or
participant or proposed assignee or participant, any information relating to the
Borrowers furnished to such Bank by or on behalf of any Borrower; provided, that
prior to any such disclosure, each such assignee or participant or proposed
assignee or participant shall agree to preserve the confidentiality, pursuant to
Section 9.12, of any confidential information relating to the Borrowers received
from such Bank.
(h) Anything in this Section 9.11 to the contrary
notwithstanding, any Bank may at any time, without the consent of any Borrower
or the Administrative Agent, assign and pledge all or any portion of its
Commitment and the Loans owing to it to any Federal Reserve Bank (and its
transferees) as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall release
the assigning Bank from its obligations hereunder. Notwithstanding the
foregoing, in connection with any such pledge of such Loans to the Federal
Reserve Bank, any Bank may request that such Loans be evidenced by a note or
notes in form and substance satisfactory to such Bank and the Company.
SECTION 9.12. Confidentiality. Each Bank agrees to exercise
its best efforts to keep any information delivered or made available by the
Company or any Borrowing Subsidiary to it (including any information obtained
pursuant to Section 5.01(e)) which is clearly indicated to be confidential
information, confidential from anyone other than Persons employed or retained by
such Bank or any of its Affiliates who are or are expected to become engaged in
evaluating, approving, structuring or administering the Loans; provided that
nothing herein shall prevent any Bank from disclosing such information (a) to
any other Bank; (b) pursuant to subpoena or upon the order of any court or
administrative agency; (c) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Bank; (d) which has been publicly
disclosed; (e) to the extent
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reasonably required in connection with any litigation to which the
Administrative Agent, any Bank, any Borrower or their respective Affiliates may
be a party; (f) to the extent reasonably required in connection with the
exercise of any remedy hereunder; (g) to such Bank's legal counsel and
independent auditors; and (h) to any actual or proposed participant or assignee
of all or part of its rights hereunder which has agreed in writing to be bound
by the provisions of this Section 9.12.
SECTION 9.13. Separability. Should any clause, sentence,
paragraph or Section of this Agreement be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating or
voiding the remainder of this Agreement, and the parties hereto agree that the
part or parts of this Agreement so held to be invalid, unenforceable or void
will be deemed to have been stricken herefrom and the remainder will have the
same force and effectiveness as if such part or parts had never been included
herein.
SECTION 9.14. Limitation by Law. All waivers, indemnities and
rights provided in this Agreement may be exercised only to the extent that the
exercise thereof does not violate any applicable provision of law, and all the
provisions of this Agreement are intended to be subject to all applicable
mandatory provisions of law which may be controlling and to be limited to the
extent necessary so that they will not render this Agreement invalid or
unenforceable, in whole or in part.
SECTION 9.15. Independence of Covenants. All covenants
contained in this Agreement shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that such action or condition would be permitted by an exception to, or
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of a Default or Event of Default if such action is taken or condition
exists.
SECTION 9.16. Appointment of Company as Agent for the Other
Borrowers. Each Borrowing Subsidiary hereby irrevocably appoints the Company as
its agent for the purpose of giving on its behalf any notice and taking any
other action provided for in this Agreement, and hereby agrees that it shall be
bound by any such notice or action given or taken by the Company hereunder
irrespective of whether or not any such notice shall have in fact been
authorized by such Borrowing Subsidiary and irrespective of whether or not the
agency provided for herein shall have theretofore been terminated.
SECTION 9.17. Judgment. The obligations of each Borrower in
respect of any sum due to any 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
FACILITY B
-87-
88
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 Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 9.17 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 9.18. European Monetary Union. (a) If, as a result of
the implementation of European monetary union, (i) any Foreign Currency ceases
to be lawful currency of the nation issuing the same and is replaced by a
European common currency, or (ii) any Foreign Currency and a European common
currency are at the same time recognized by the central bank or comparable
authority of the nation issuing such Foreign Currency as lawful currency of such
nation and the Administrative Agent or the Majority Banks shall so request in a
notice delivered to the Company, then any amount payable hereunder by any party
hereto in such Foreign Currency shall instead be payable in the European common
currency and the amount so payable shall be determined by translating the amount
payable in such currency to such European common currency at the exchange rate
recognized by the European Central Bank for the purposes of implementing
European monetary union. Prior to making any such request with respect to any
currency, each amount payable hereunder in such Foreign Currency will, except
under the circumstances described in Section 2.15, continue to be payable only
in that Foreign Currency.
(b) Each Borrower agrees, at the request of the Majority
Banks, at the time of or at any time following the implementation of European
monetary union, to enter into an agreement amending this Agreement in such
manner as the Majority Banks shall reasonably specify in order to reflect the
implementation of such monetary union and to place the parties hereto in a
substantially equivalent position to the position they would have been in
hereunder had such monetary union not been implemented.
SECTION 9.19. SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. (a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT,
THE FOREIGN CURRENCY ADDENDA AND THE AGENT'S FEE LETTER MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS WITH
RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH BORROWING SUBSIDIARY HEREBY
IRREVOCABLY DESIGNATES, APPOINTS AND
FACILITY B
-88-
89
EMPOWERS CORPORATION SERVICE COMPANY, WITH OFFICES ON THE DATE HEREOF AT 80
STATE STREET, ALBANY, NEW YORK 12201, AS ITS DESIGNEE, APPOINTEE AND AGENT TO
RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS
PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS
WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH
DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH
BORROWING SUBSIDIARY AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN
THE STATE OF NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION
SATISFACTORY TO THE ADMINISTRATIVE AGENT. EACH BORROWING SUBSIDIARY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS PROVIDED IN
SECTION 9.02, SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY BANK TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWING SUBSIDIARY IN ANY OTHER
JURISDICTION.
(b) TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY (SOVEREIGN OR OTHERWISE) FROM ANY LEGAL ACTION, SUIT OR
PROCEEDING, FROM JURISDICTION OF ANY COURT OR FROM SET-OFF OR ANY LEGAL PROCESS
(WHETHER SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE) WITH RESPECT TO
ITSELF OR ANY OF ITS PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER
THIS AGREEMENT AND THE FOREIGN CURRENCY ADDENDA. EACH BORROWER HEREBY AGREES
THAT THE WAIVERS SET FORTH IN THIS SECTION 9.19 SHALL HAVE THE FULLEST EFFECT
PERMITTED UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976 OF THE UNITED
STATES OF
FACILITY B
-89-
90
AMERICA AND ARE INTENDED TO BE IRREVOCABLE AND NOT SUBJECT TO WITHDRAWAL FOR
PURPOSES OF SUCH ACT.
SECTION 9.20. Entire Agreement. This Agreement (including the
Exhibits and Schedules hereto), the Borrowing Subsidiary Counterparts, if any,
the Assignment and Acceptances, if any, the Foreign Currency Addenda, and the
Agent's Fee Letter embody the entire agreement and understanding among the
Company, the Administrative Agent and the Banks relating to the subject matter
hereof and thereof and supersede all prior proposals, agreements and
understandings relating to such subject matter.
SECTION 9.21. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
SERVICE CORPORATION INTERNATIONAL
By:
--------------------------------------
Name: Gregory L. Cauthen
Title: Vice President and Treasurer
FACILITY B
91
611102 SASKATCHEWAN LTD.
By:
--------------------------------------
Name:
Title:
FACILITY B
92
SERVICE CORPORATION INTERNATIONAL
AUSTRALIAN PTY LIMITED
By:
--------------------------------------
Name:
Title:
FACILITY B
93
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
--------------------------------------
Name:
Title:
FACILITY B
94
CO-AGENTS:
BANK OF AMERICA ILLINOIS, as Co-Agent
By:
--------------------------------------
Name:
Title:
FACILITY B
95
CITIBANK N.A., as Co-Agent
By:
--------------------------------------
Name:
Title:
FACILITY B
96
NATIONSBANK, N.A., as Co-Agent
By:
--------------------------------------
Name:
Title:
FACILITY B
97
ROYAL BANK OF CANADA, as Co-Agent
By:
--------------------------------------
Name:
Title:
FACILITY B
98
SOCIETE GENERALE, as Co-Agent
By:
--------------------------------------
Name:
Title:
FACILITY B
99
UNION BANK OF SWITZERLAND, as Co-Agent
By:
--------------------------------------
Name:
Title:
FACILITY B
100
BANKS
ABN AMRO BANK N.V., HOUSTON AGENCY
By:
---------------------------------------
Name: David P. Orr
Title: Vice President
By:
---------------------------------------
Name: Ronald A. Mahle
Title: Group Vice President
Three Riverway, Suite 1700
Houston, Texas 77056
Telecopy No.: (713) 629-7533
Domestic Lending Office
ABN AMRO Bank N.V., Houston Agency
Three Riverway, Suite 1700
Houston, Texas 77056
Attn: Ms. Josephine Zozdorado
Telecopy No.: (713) 964-3331
Eurodollar Lending Office
ABN AMRO Bank N.V., Houston Agency
Three Riverway, Suite 1700
Houston, Texas 77056
Attn: Mr. David Orr
Telecopy No.: (713) 964-3323
Commitment: $35,000,000.00
FACILITY B
101
BANK OF AMERICA ILLINOIS
By:
---------------------------------------
Name:
Title:
231 South LaSalle Street
Chicago, Illinois 60697
Telecopy No.: (312) 987-1276
Domestic Lending Office
Bank of America Illinois
1850 Gateway Boulevard
Concord, California 94520
Attn: Camille Gibby
Telecopy No.: (510) 675-7759
Eurodollar Lending Office
Bank of America Illinois
1850 Gateway Boulevard
Concord, California 94520
Attn: Camille Gibby
Telecopy No.: (510) 675-7759
Commitment: $59,500,000.00
FACILITY B
102
THE BANK OF NEW YORK
By:
---------------------------------------
Name:
Title:
One Wall Street, 22nd Floor
New York, New York 10286
Telecopy No.: (212) 635-6434
Domestic Lending Office
One Wall Street, 22nd Floor
New York, New York 10286
Attn: Larry Geter
Telecopy No.: (212) 635-6740
Eurodollar Lending Office
One Wall Street, 22nd Floor
New York, New York 10286
Attn: Larry Geter
Telecopy No.: (212) 635-6740
Commitment: $35,000,000.00
FACILITY B
103
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By:
---------------------------------------
Name: John L. Stacy
Title: Vice President
333 Clay Street, Suite 3400
Houston, Texas 77002
Telecopy No.: (713) 659-1414
Domestic Lending Office
Banque Nationale De Paris, Houston Agency
333 Clay Street, Suite 3400
Houston, Texas 77002
Attn: Donna Rose
Telecopy No.: (713) 659-1414
Eurodollar Lending Office
Banque Nationale De Paris, Houston Agency
333 Clay Street, Suite 3400
Houston, Texas 77002
Attn: Donna Rose
Telecopy No.: (713) 659-1414
Commitment: $21,000,000.00
FACILITY B
104
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By:
---------------------------------------
Name:
Title:
1100 Louisiana Street, Suite 2800
Houston, Texas 77002-5216
Telecopy No.: (713) 658-0116
Domestic Lending Office
The Bank of Tokyo-Mitsubishi, Ltd., Houston Agency
1100 Louisiana Street, Suite 2800
Houston, Texas 77002-5216
Attn: David L. Denbina, P.E.
Telecopy No.: (713) 658-0116
Eurodollar Lending Office
The Bank of Tokyo-Mitsubishi, Ltd., Houston Agency
1100 Louisiana Street, Suite 2800
Houston, Texas 77002-5216
Attn: David L. Denbina, P.E.
Telecopy No.: (713) 658-0116
Commitment: $35,000,000.00
FACILITY B
105
CIBC, INC.
By:
---------------------------------------
Name:Robin W. Elliott
Title:Authorized Signatory
Two Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
Telecopy No.: (404) 319-4950
Domestic Lending Office
CIBC, Inc.
Two Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
Attn: Kelli Jones
Telecopy No.: (770) 319-4817
Eurodollar Lending Office
CIBC, Inc.
Two Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
Attn: Kelli Jones
Telecopy No.: (770) 319-4817
Commitment: $35,000,000.00
FACILITY B
106
CITIBANK, N.A.
By:
---------------------------------------
Name:
Title:
400 Perimeter Center Terrace
Suite 600
Atlanta, Georgia 30346
Telecopy No.: (770) 668-8137
Domestic Lending Office
Citibank, N.A.
1 Court Square, 7th Floor
Long Island City, New York 11120
Eurodollar Lending Office
Citibank, N.A.
1 Court Square, 7th Floor
Long Island City, New York 11120
Commitment: $59,500,000.00
FACILITY B
107
COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
Promenade Two, Suite 3500
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
Telecopy No.: (404) 888-6539
Domestic Lending Office
Commerzbank Aktiengesellschaft, Atlanta Agency
Promenade Two, Suite 3500
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attn: David Suttles - AVP
Telecopy No.: (404) 888-6539
Eurodollar Lending Office
Commerzbank Aktiengesellschaft, Atlanta Agency
Promenade Two, Suite 3500
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attn: David Suttles - AVP
Telecopy No.: (404) 888-6539
Commitment: $14,000,000.00
FACILITY B
108
CREDIT LYONNAIS NEW YORK BRANCH
By:
---------------------------------------
Name:
Title:
1301 Avenue of the Americas
New York, New York 10019
Telecopy No.: (212) 954-3312
Domestic Lending Office
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Telecopy No.: (212) 954-3312
Eurodollar Lending Office
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Telecopy No.: (212) 954-3312
Commitment: $14,000,000.00
with notices to:
Credit Lyonnais
Dallas Representative Office
2200 Ross Avenue, Suite 4400W
Dallas, Texas 75201
FACILITY B
109
THE FUJI BANK, LIMITED
By:
---------------------------------------
Name:
Title:
One Houston Center
1221 McKinney, Suite 4100
Houston, Texas 77010
Telecopy No.: (713) 759-0048
Domestic Lending Office
The Fuji Bank, Limited
One Houston Center
1221 McKinney, Suite 4100
Houston, Texas 77010
Attn: Frances Flores
Telecopy No.: (713) 951-0590
Eurodollar Lending Office
The Fuji Bank, Limited
One Houston Center
1221 McKinney, Suite 4100
Houston, Texas 77010
Attn: Frances Flores
Telecopy No.: (713) 951-0590
Commitment: $14,000,000.00
FACILITY B
110
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By:
---------------------------------------
Name: William J. De Angelo
Title: First Vice President
By:
---------------------------------------
Name: Robert S. Wurster
Title: First Vice President
245 Park Avenue, 35th Floor
New York, New York 10167
Telecopy No.: (212) 599-5303
Domestic Lending Office
Istituto Bancario San Paolo Di Torino S.P.A.
245 Park Avenue, 35th Floor
New York, New York 10167
Attn: Robert Wurster
Telecopy No.: (212) 599-5303
Eurodollar Lending Office
Istituto Bancario San Paolo Di Torino S.P.A.
245 Park Avenue, 35th Floor
New York, New York 10167
Attn: Robert Wurster
Telecopy No.: (212) 599-5303
Commitment: $14,000,000.00
FACILITY B
111
NATIONSBANK N.A.
By:
---------------------------------------
Name:
Title:
700 Louisiana, 8th Floor
Houston, Texas 77002
Telecopy No.: (713) 247-5719
Domestic Lending Office
NationsBank N.A.
101 North Tryon Street
Charlotte, NC 28255
Attn: Kerri Thompson
Telecopy No.: (704) 386-8694
Eurodollar Lending Office
NationsBank N.A.
101 North Tryon Street
Charlotte, NC 28255
Attn: Kerri Thompson
Telecopy No.: (704) 386-8694
Commitment: $59,500,000.00
FACILITY B
112
ROYAL BANK OF CANADA
By:
---------------------------------------
Name:
Title:
12450 Greenspoint Drive, Suite 1450
Houston, Texas 77060
Telecopy No.: (281) 874-0081
Domestic Lending Office
Royal Bank of Canada
c/o New York Branch
Financial Square, 32 Old Slip
New York, New York 10005
Telecopy No.: (212) 428-2372
Eurodollar Lending Office
Royal Bank of Canada
c/o New York Branch
Financial Square, 32 Old Slip
New York, New York 10005
Telecopy No.: (212) 428-2372
Commitment: $59,500,000.00
FACILITY B
113
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
---------------------------------------
Name:
Title:
2001 Ross Avenue, Suite 4800
Dallas, Texas 75201
Telecopy No.: (214) 754-0171
Domestic Lending Office
Societe Generale, Southwest Agency
2001 Ross Avenue, Suite 4800
Dallas, Texas 75201
Telecopy: (214) 754-0171
Eurodollar Lending Office
Societe Generale, Southwest Agency
2001 Ross Avenue, Suite 4800
Dallas, Texas 75201
Telecopy: (214) 754-0171
Commitment: $59,500,000.00
FACILITY B
114
SUNTRUST BANK, ATLANTA
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
Center 120
25 Park Place, NE
Atlanta, Georgia 30303
Telecopy No.: (404) 827-6270
Domestic Lending Office
Suntrust Bank, Atlanta
Center 120
25 Park Place, NE
Atlanta, Georgia 30303
Telecopy: (404) 827-6270
Eurodollar Lending Office
Suntrust Bank, Atlanta
Center 120
25 Park Place, NE
Atlanta, Georgia 30303
Telecopy: (404) 827-6270
Commitment: $35,000,000.00
FACILITY B
115
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By:
---------------------------------------
Name: Jan Danvers
Title: Senior Vice President
712 Main Street
5TCB-E 78
Houston, Texas 77002
Telecopy No.: (713) 216-7500
Domestic Lending Office
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002
Attn: Gloria Aguilar
Telecopy No.: (713) 216-7500
Eurodollar Lending Office
Texas Commerce Bank National Association
712 Main Street
Houston, Texas 77002
Attn: Gloria Aguilar
Telecopy No.: (713) 216-7500
Commitment: $70,000,000.00
FACILITY B
116
UNION BANK OF SWITZERLAND
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
299 Park Avenue
New York, New York 10171
Telecopy No.: (212) 821-5534
Domestic Lending Office
Union Bank of Switzerland
299 Park Avenue
New York, New York 10171
Telecopy: (212) 821-5534
Eurodollar Lending Office
Union Bank of Switzerland
299 Park Avenue
New York, New York 10171
Telecopy: (212) 821-5534
Commitment: $59,500,000.00
FACILITY B
117
WESTPAC BANKING CORPORATION
By:
---------------------------------------
Name: Craig Jones
Title: Vice President
575 Fifth Avenue
New York, New York 10017
Telecopy No.: (212) 551-1995
Domestic Lending Office
Westpac Banking Corporation
575 Fifth Avenue
New York, New York 10017
Attn: Craig Jones
Telecopy No.: (212) 551-1995
Eurodollar Lending Office
Westpac Banking Corporation
575 Fifth Avenue
New York, New York 10017
Attn: Craig Jones
Telecopy No.: (212) 551-1995
Commitment: $21,000,000.00
FACILITY B