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Exhibit 10.2
CREDIT AGREEMENT
among
BOSTON SCIENTIFIC CORPORATION,
The Several Lenders
from Time to Time Parties Hereto,
ABN AMRO BANK N.V.,
as Syndication Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent,
BARCLAYS BANK PLC,
as Syndication Agent,
CHASE SECURITIES INC.,
as Arranger and as Book Manager,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of September 4, 1998
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS.............................................. 1
1.1 Defined Terms............................................. 1
1.2 Other Definitional Provisions............................. 14
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS........................... 14
2.1 Revolving Credit Commitments.............................. 14
2.2 Procedure for Revolving Credit Borrowing.................. 14
2.3 Facility Fee; Utilization Fee............................. 15
2.4 Termination or Reduction of Revolving Credit Commitments;
Extension of Termination Date.......................... 15
2.5 Repayment of Revolving Credit Loans....................... 17
2.6 CAF Advances.............................................. 17
2.7 Procedure for CAF Advance Borrowing....................... 17
2.8 Repayment of CAF Advances................................. 20
2.9 Certain Restrictions with Respect to CAF Advances......... 20
SECTION 3. CERTAIN PROVISIONS APPLICABLE TO THE LOANS................ 20
3.1 Optional Prepayments...................................... 20
3.2 Conversion and Continuation Options....................... 21
3.3 Minimum Amounts and Maximum Number of Tranches............ 21
3.4 Interest Rates and Payment Dates.......................... 21
3.5 Computation of Interest and Fees.......................... 22
3.6 Inability to Determine Interest Rate...................... 23
3.7 Pro Rata Treatment and Payments........................... 23
3.8 Illegality................................................ 24
3.9 Requirements of Law....................................... 24
3.10 Taxes..................................................... 26
3.11 Indemnity................................................. 27
3.12 Change of Lending Office; Removal of Lender............... 28
3.13 Evidence of Debt.......................................... 28
SECTION 4. REPRESENTATIONS AND WARRANTIES............................ 29
4.1 Financial Condition....................................... 29
4.2 No Change................................................. 30
4.3 Corporate Existence; Compliance with Law.................. 30
4.4 Corporate Power; Authorization; Enforceable Obligations... 30
4.5 No Legal Bar.............................................. 30
4.6 No Material Litigation.................................... 30
4.7 No Default................................................ 31
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4.8 Intellectual Property.............................................31
4.9 Taxes.............................................................31
4.10 Federal Regulations...............................................31
4.11 ERISA.............................................................31
4.12 Investment Company Act; Other Regulations.........................32
4.13 Purpose of Loans..................................................32
4.14 Environmental Matters.............................................32
4.15 Disclosure........................................................33
4.16 Year 2000 Matters.................................................33
SECTION 5. CONDITIONS PRECEDENT..............................................34
5.1 Conditions to Initial Loans.......................................34
5.2 Conditions to Each Loan...........................................35
SECTION 6. AFFIRMATIVE COVENANTS.............................................35
6.1 Financial Statements..............................................35
6.2 Certificates; Other Information...................................36
6.3 Payment of Obligations............................................36
6.4 Conduct of Business and Maintenance of Existence..................36
6.5 Maintenance of Property; Insurance................................37
6.6 Inspection of Property; Books and Records; Discussions............37
6.7 Notices...........................................................37
6.8 Consummation of Schneider Acquisition.............................38
SECTION 7. NEGATIVE COVENANTS................................................38
7.1 Funded Debt Ratio.................................................38
7.2 Limitation on Liens...............................................38
7.3 Limitation on Fundamental Changes.................................39
SECTION 8. EVENTS OF DEFAULT.................................................40
SECTION 9. THE ADMINISTRATIVE AGENT; THE ARRANGER............................42
9.1 Appointment.......................................................42
9.2 Delegation of Duties..............................................43
9.3 Exculpatory Provisions............................................43
9.4 Reliance by Administrative Agent..................................43
9.5 Notice of Default.................................................44
9.6 Non-Reliance on Administrative Agent and Other Lenders............44
9.7 Indemnification...................................................44
9.8 Administrative Agent in Its Individual Capacity...................45
9.9 Successor Administrative Agent....................................45
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9.10 The Arranger, the Book Manager and the Syndication Agents... 45
SECTION 10. MISCELLANEOUS............................................. 46
10.1 Amendments and Waivers...................................... 46
10.2 Notices..................................................... 46
10.3 No Waiver; Cumulative Remedies.............................. 47
10.4 Survival of Representations and Warranties.................. 47
10.5 Payment of Expenses and Taxes............................... 47
10.6 Successors and Assigns; Participations and Assignments...... 48
10.7 Adjustments; Set-off........................................ 50
10.8 Counterparts................................................ 51
10.9 Severability................................................ 51
10.10 Integration................................................. 51
10.11 GOVERNING LAW............................................... 51
10.12 Submission To Jurisdiction; Waivers......................... 52
10.13 Acknowledgements............................................ 52
10.14 Confidentiality............................................. 52
10.15 WAIVERS OF JURY TRIAL....................................... 53
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SCHEDULES
Schedule I Names, Addresses and Commitments of Lenders
Schedule 7.2 Existing Liens
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of CAF Advance Note
Exhibit C Form of CAF Advance Request
Exhibit D Form of CAF Advance Offer
Exhibit E Form of CAF Advance Confirmation
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Counsel to Borrower
Exhibit H Form of Assignment and Acceptance
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CREDIT AGREEMENT, dated as of September 4, 1998, among (i)
BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (the "Borrower"), (ii) the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), (iii) ABN AMRO BANK N.V., a Dutch banking
corporation, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national
banking association, and BARCLAYS BANK PLC, a banking corporation organized
under the laws of England, as Syndication Agents (each in such capacity, a
"Syndication Agent", and collectively, the "Syndication Agents"), (iv) CHASE
SECURITIES INC., as Arranger (in such capacity, the "Arranger") and as Book
Manager (in such capacity, the "Book Manager") and (v) THE CHASE MANHATTAN BANK,
a New York banking corporation, as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to make
available a 364-day credit facility as described herein; and
WHEREAS, the Lenders have agreed to make such credit facility
available upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants and agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
Chase as its prime rate in effect at its principal office in New York
City (the Prime Rate not being intended to be the lowest rate of
interest charged by Chase in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board of Governors of the Federal Reserve System
(the "Board") through the public information telephone line of the
Federal Reserve Bank of
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New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on
such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day shall not
be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it; and "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. Any change in the
ABR due to a change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loans": Revolving Credit Loans bearing interest based
upon the ABR.
"Administrative Agent": Chase, together with its Affiliates,
as the arranger of the Revolving Credit Commitments and as the agent
for the Lenders under this Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Aggregate Available Revolving Credit Commitments": the
aggregate amount of the Available Revolving Credit Commitments of all
of the Lenders.
"Aggregate Revolving Credit Commitments": the aggregate amount
of the Revolving Credit Commitments of all of the Lenders.
"Aggregate Revolving Credit Outstandings": as at any date of
determination with respect to any Lender, the aggregate unpaid
principal amount of such Lender's Revolving Credit Loans on such date.
"Aggregate Total Outstandings": as at any date of
determination with respect to any Lender, an amount equal to the sum of
(a) the Aggregate Revolving Credit
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Outstandings of such Lender on such date and (b) the aggregate unpaid
principal amount of such Lender's CAF Advances on such date.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": with respect to each day for each Type of
Loan, the rate per annum based on the Ratings in effect on such day, as
set forth under the relevant column heading below:
Rating Eurodollar Loans ABR Loans
------ ---------------- ---------
Rating I .240% 0%
Rating II .270% 0%
Rating III .300% 0%
Rating IV .375% 0%
Rating V .575% 0%
"Assignee": as defined in subsection 10.6(c).
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender, an amount equal to the
excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date over (b) the Aggregate Revolving
Credit Outstandings of such Lender on such date.
"Board": as defined in the definition of ABR.
"Book Manager": as defined in the preamble hereto.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.2 or 2.7 as a date on which the Borrower
requests the Lenders to make Loans hereunder.
"Business": as defined in subsection 4.14.
"Business Day": (a) when such term is used to describe a day
on which a borrowing, payment or interest rate determination is to be
made in respect of a Eurodollar Loan or a LIBO Rate CAF Advance, such
day shall be a London Banking Day and (b) when such term is used in any
context in this Agreement (including as described in the foregoing
clause (a)), such term shall mean a day which, in addition to complying
with any applicable requirements set forth in the foregoing clause (a),
is a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close.
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"CAF Advance": each CAF (competitive advance facility) Advance
made pursuant to subsection 2.6.
"CAF Advance Availability Period": the period from and
including the Closing Date to and including the date which is 7 days
prior to the Termination Date.
"CAF Advance Confirmation": each confirmation by the Borrower
of its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit E and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified by the Borrower for such CAF
Advance in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Borrower pursuant to subsection 2.7(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Note": as defined in subsection 3.13(e).
"CAF Advance Offer": each offer by a Lender to make CAF
Advances pursuant to a CAF Advance Request, which offer shall contain
the information specified in Exhibit D and shall be delivered to the
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the Borrower for
Lenders to submit bids to make CAF Advances, which request shall
contain the information in respect of such requested CAF Advances
specified in Exhibit C and shall be delivered to the Administrative
Agent in writing, by facsimile transmission, or by telephone,
immediately confirmed by facsimile transmission.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"C/D Assessment Rate": for any day as applied to any ABR Loan,
the annual assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund maintained by the Federal Deposit
Insurance Corporation (the "FDIC") classified as well-capitalized and
within supervisory subgroup "B" (or a comparable successor assessment
risk classification) within the meaning of 12 C.F.R. Section 327.4 (or
any successor provision) to the FDIC (or any successor) for the FDIC's
(or such successor's) insuring time deposits at offices of such
institution in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by
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the Board, for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board) in
respect of new non-personal time deposits in Dollars having a maturity
of 30 days or more.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date": the first date, on or before December 31,
1998, on which the conditions precedent set forth in subsection 5.1
shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date or such earlier date on
which the Revolving Credit Commitments shall terminate as provided
herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Funded Debt": at any time, all Indebtedness of
the Borrower and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Worth": at any time, all amounts which
would, in accordance with GAAP, be included under shareholders' equity
or classified as temporary equity, as prescribed by the Financial
Accounting Standards Board or Securities and Exchange Commission (e.g.
contingent stock repurchase obligations), on a consolidated balance
sheet of the Borrower and its Subsidiaries as at such time; provided,
that in computing Consolidated Net Worth, no deductions shall be made
with respect to charges for purchased research and development related
to the Schneider Acquisition.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, regulations, statutes,
ordinances, codes, decrees, or other enforceable requirements or orders
of any Governmental Authority or other Requirements of Law regulating,
relating to or imposing liability or standards of
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conduct concerning protection of human health or the environment, as
now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan or CAF Advance, the
rate per annum determined by the Administrative Agent to be the offered
rate for deposits in Dollars with a term comparable to such Interest
Period that appears on the applicable Telerate Page at approximately
11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period; provided, however, that if at any time for any
reason such offered rate does not appear on a Telerate Page,
"Eurodollar Base Rate" shall mean, with respect to each day during each
Interest Period pertaining to such Loan or CAF Advance, the rate per
annum equal to the average (rounded upward to the nearest 1/16th of 1%)
of the respective rates notified to the Administrative Agent by each of
the Reference Lenders as the rate at which such Reference Lender is
offered deposits in Dollars at or about 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period in the
London interbank market for delivery on the first day of such Interest
Period for the number of days comprised therein.
"Eurodollar Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Utilization Day": any day on which (i) the sum of the
Aggregate Total Outstandings of all the Lenders hereunder, plus the
Aggregate Total Outstandings of all Lenders under (and as defined in)
the Medium Term Facility,
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exceeds (ii) 50% of the aggregate amount of the Revolving Credit
Commitments hereunder and the Revolving Credit Commitments under (and
as defined in) the Medium Term Facility (or, in each case, with respect
to any day after termination of such Revolving Credit Commitments, 50%
of the aggregate amount of such Revolving Credit Commitments in effect
on the date immediately prior to the date on which such Revolving
Credit Commitments terminated).
"Facility Fee Rate": for each day during each calculation
period, the rate per annum based on the Ratings in effect on such day,
as set forth below:
Facility
Rating Fee Rate
------ --------
Rating I .060%
Rating II .080%
Rating III .100%
Rating IV .125%
Rating V .175%
"Fee Commencement Date": the earlier of (i) October 5, 1998
and (ii) the Closing Date.
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate
(as opposed to a rate composed of the Eurodollar Rate plus (or minus) a
margin).
"GAAP": generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the
audited financial statements referred to in subsection 4.1.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other unrelated
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third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices and earn-outs and other similar
obligations in respect of acquisition and other similar agreements),
(b) any other indebtedness of such Person which is evidenced by a note,
bond, debenture or similar instrument, (c) all obligations of such
Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person
and (e) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become
liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of
such Interest Period, and (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three
months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan:
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(i) initially, the period commencing on the
Borrowing Date or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or
six months (or, if available to all Lenders, nine or twelve
months) thereafter, as selected by the Borrower in its notice
of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months
(or, if available to all Lenders, nine or twelve months)
thereafter, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(2) any Interest Period in respect of any Loan made
by any Lender that would otherwise extend beyond the
Termination Date applicable to such Lender shall end on such
Termination Date; and
(3) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(b) with respect to any LIBO Rate CAF Advance, the period
beginning on the Borrowing Date with respect thereto and ending on the
CAF Advance Maturity Date with respect thereto.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a
LIBO Rate CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at an interest
rate equal to the Eurodollar Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
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retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any Revolving Credit Loan or CAF Advance.
"Loan Documents": this Agreement and any Notes.
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"Majority Lenders": (a) at any time prior to the termination
of the Revolving Credit Commitments, Lenders, the Revolving Credit
Commitment Percentages of which aggregate more than 50%; and (b) at any
time after the termination of the Revolving Credit Commitments, Lenders
whose Aggregate Total Outstandings aggregate more than 50% of the
Aggregate Total Outstandings of all Lenders.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder; provided that the acquisition related
charges and purchased research and development recorded or to be
recorded in respect of the Schneider Acquisition shall not be a
Material Adverse Effect.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Medium Term Facility": the Credit Agreement, dated as of the
date hereof, among the Borrower, the lenders parties thereto, The Chase
Manhattan Bank, as administrative agent, and others, providing for a
$1,000,000,000 revolving credit, multicurrency and competitive advance
facility.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 3.10.
"Notes": the collective reference to any Revolving Credit
Notes and any CAF Advance Notes.
"Participant": as defined in subsection 10.6(b).
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"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Properties": as defined in subsection 4.14.
"Rating": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt
of the Borrower, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and Moody's.
"Rating Category": each of Rating I, Rating II, Rating III,
Rating IV and Rating V.
"Rating I, Rating II, Rating III, Rating IV and Rating V": the
respective Ratings set forth below:
Rating
Category S&P Moody's
-------- --- -------
Rating I greater than or greater than or
equal to A- equal to A3
Rating II lower than A- lower than A3
and greater than and greater than or
or equal to BBB+ equal to Baa1
Rating III lower than BBB+ lower than Baa1
and greater than and greater than or
or equal to BBB equal to Baa2
Rating IV lower than BBB lower than Baa2
and greater than and greater than or
or equal to BBB- equal to Baa3
Rating V lower than or equal lower than or equal
to BB+ to Ba1
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; provided, that (i) if on any day the Ratings of the Rating Agencies
do not fall in the same Rating Category, and the lower of such Ratings
(i.e., the Rating Category designated by a numerically higher Roman
numeral) is one Rating Category lower than the higher of such Ratings,
then the Rating Category of the higher of such Ratings shall be
applicable for such day, (ii) if on any day the Ratings of the Rating
Agencies do not fall in the same Rating Category, and the lower of such
Ratings is more than one Rating Category lower than the higher of such
Ratings, then the Rating Category next higher from that of the lower of
such Ratings shall be applicable for such day, (iii) if on any day the
Rating of only one of the Rating Agencies is available, then the Rating
Category of such Rating shall be applicable for such day and (iv) if on
any day a Rating is available from neither of the Rating Agencies, then
Rating V shall be applicable for such day. Any change in the applicable
Rating Category resulting from a change in the Rating of a Rating
Agency shall become effective on the date such change is publicly
announced by such Rating Agency.
"Reference Lenders": Chase, Bank of America National Trust and
Savings Association, Barclays Bank PLC and ABN AMRO Bank N.V.
"Register": as defined in subsection 10.6(d).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. Section 4043.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": with respect to the Borrower, the chief
executive officer and the president of the Borrower or, with respect to
financial matters, the chief financial officer of the Borrower.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the
Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I under the heading "Revolving Credit Commitment," as
such amount may be reduced from time to time in accordance with the
provisions of this Agreement.
"Revolving Credit Commitment Percentage": as to any Lender at
any time, the percentage which such Lender's Revolving Credit
Commitment at such time constitutes of the Aggregate Revolving Credit
Commitments at such time (or, if the
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Revolving Credit Commitments have terminated or expired, the percentage
which (a) the Aggregate Revolving Credit Outstandings of such Lender at
such time then constitutes of (b) the Aggregate Revolving Credit
Outstandings of all Lenders at such time).
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 3.13(d).
"S&P": Standard & Poor's Ratings Services.
"Schneider Acquisition": the acquisition by the Borrower and
its Subsidiaries of the stock and assets related to the Schneider
business from Pfizer, Inc.
"Signing Date": the date on which the Lenders have signed this
Agreement.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Syndication Agents": as defined in the preamble hereto.
"Termination Date": with respect to a Lender, the date which
is 364 days after the Fee Commencement Date, as such date may be
extended with respect to such Lender pursuant to subsection 2.4.
"Tranche": the collective reference to Eurodollar Loans, the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day); Tranches may be
identified as "Eurodollar Tranches".
"Transferee": as defined in subsection 10.6(f).
"Type": as to any Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan.
"Utilization Fee Rate": .10% per annum.
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1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") in Dollars to the Borrower from time to time during
the Commitment Period so long as after giving effect thereto (i) the Available
Revolving Credit Commitment of each Lender is greater than or equal to zero and
(ii) the Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
Revolving Credit Commitments. During the Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 3.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans or (b) on the requested Borrowing
Date, otherwise), in each case specifying (i) the amount to be borrowed, (ii)
the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Period therefor. Each borrowing under the
Revolving Credit Commitments shall be in an
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amount equal to (x) in the case of ABR Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the Aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof. Prior to 11:00 A.M., New York
City time, on the Borrowing Date requested by the Borrower, each Lender will
make an amount equal to its Revolving Credit Commitment Percentage of the
principal amount of the Revolving Credit Loans requested to be made on such
Borrowing Date available to the Administrative Agent for the account of the
Borrower at the New York office of the Administrative Agent specified in
subsection 10.2 in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.3 Facility Fee; Utilization Fee. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a facility fee
for the period from and including the Fee Commencement Date to the Termination
Date, computed at the Facility Fee Rate on the average daily amount of the
Revolving Credit Commitment of such Lender (regardless of usage) during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Termination Date or such
earlier date on which the Revolving Credit Commitments shall terminate as
provided herein, commencing on the first of such dates to occur after the date
hereof.
(b) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a utilization fee for each Excess Utilization Day
during the period from and including the Fee Commencement Date to the
Termination Date, computed at the Utilization Fee Rate on the average daily
amount of the Aggregate Total Outstandings of such Lender for each Excess
Utilization Day during the period for which payment is made, payable quarterly
in arrears on the last day of each March, June, September and December and on
the Termination Date or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
2.4 Termination or Reduction of Revolving Credit Commitments;
Extension of Termination Date. (a) The Borrower shall have the right, upon not
less than five Business Days' notice to the Administrative Agent, to terminate
the Revolving Credit Commitments or, from time to time, to reduce the amount of
the Revolving Credit Commitments; provided that no such termination or reduction
shall be permitted if, after giving effect thereto and to any prepayments of the
Loans made on the effective date thereof, either (a) the Aggregate Available
Revolving Credit Commitments would not be greater than or equal to zero or (b)
the Available Revolving Credit Commitments of any Lender would not be greater
than or equal to zero. Any such reduction shall be in an amount equal to
$5,000,000 or a whole multiple thereof and shall reduce permanently the
Revolving Credit Commitments then in effect.
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(b)(i) The Borrower may request, in a notice given as herein
provided to the Administrative Agent and each of the Lenders not more than 60
days, and not less than 30 days, prior to the Termination Date, that the
Termination Date (the "Existing Termination Date") be extended. Such notice
shall specify the requested new Termination Date (the "Requested Termination
Date"), which shall be not more than 364 days after the Existing Termination
Date. Each Lender, acting in its sole discretion, shall, not later than the
later of (i) the date which is 30 days prior to the Existing Termination Date
and (ii) the date which is 20 days after the receipt by the Lenders of any such
notice from the Borrower, notify the Borrower and the Administrative Agent in
writing of its election to extend or not to extend the Termination Date with
respect to its Revolving Credit Commitment. Any Lender which shall not timely
notify the Borrower and the Administrative Agent of its election to extend the
Termination Date shall be deemed to have elected not to extend the Termination
Date with respect to its Revolving Credit Commitment (any Lender who timely
notifies the Borrower and the Administrative Agent of an election not to extend
its Revolving Credit Commitment and any Lender so deemed to have elected not to
extend its Revolving Credit Commitment being referred to as a "Terminating
Lender"). The election of any Lender to agree to a requested extension shall not
obligate any other Lender so to agree.
(ii) If and only if Lenders holding at least 50% of the
Aggregate Revolving Credit Commitments on the date of the notice delivered by
the Borrower pursuant to subparagraph (i) above (including Revolving Credit
Commitments of all Terminating Lenders on such date) shall have agreed during
the period referred to in such subparagraph (i) to extend the Existing
Termination Date, then (A) the Revolving Credit Commitments of the Lenders other
than Terminating Lenders (the "Continuing Lenders") shall, subject to the other
provisions of this Agreement, be extended to the Requested Termination Date
specified in the notice from the Borrower, and as to such Lenders the term
"Termination Date", as used herein, shall on and after the date as of which the
requested extension is effective mean such Requested Termination Date, provided
that if such date is not a Business Day, then such Requested Termination Date
shall be the next preceding Business Day and (B) the Revolving Credit
Commitments of the Terminating Lenders shall continue until the Existing
Termination Date, and shall then terminate, and as to the Terminating Lenders,
the term "Termination Date", as used herein, shall continue to mean the Existing
Termination Date.
(c) In the event that the Termination Date shall have been
extended for the Continuing Lenders in accordance with paragraph (b) above and,
in connection with such extension, there are Terminating Lenders, the Borrower
may, at its own expense, require any Terminating Lender to transfer and assign
in whole or in part, without recourse (in accordance with subsection 10.6) all
or part of its interests, rights and obligations under this Agreement (other
than any CAF Advances owing to such Terminating Lender) to an assignee (which
assignee may be another Lender, if another Lender accepts such assignment) that
shall assume such assigned obligations and that shall agree that its Revolving
Credit Commitment will expire on the Termination Date in effect for Continuing
Lenders pursuant to such paragraph (b); provided, however, that (i) the Borrower
shall have received a written consent of the Administrative Agent in the case of
an assignee that is not a Lender (which consent shall not unreasonably be
withheld) and (ii) the assigning Lender shall have received from the Borrower or
such assignee full payment in immediately available funds of the principal of
and interest accrued to the date of such payment on the Loans made by it
hereunder to the extent
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that such Loans are subject to such assignment, the facility fees and
utilization fees accrued on such Lender's Revolving Credit Commitment under
subsection 2.3 to the date of such payment and all other amounts owed to it
hereunder (including any amounts that would be payable to the assigning Lender
pursuant to subsection 3.11 if such assignment were, instead, a prepayment of
the Loans of such Lender). Any such assignee's Termination Date shall be the
Termination Date in effect at the time of such assignment for the Continuing
Lenders. The Borrower shall not have any right to require a Lender to assign any
part of its interests, rights and obligations under this Agreement pursuant to
this paragraph (c) unless it has notified such Lender of its intention to
require the assignment thereof at least ten days prior to the proposed
assignment date.
2.5 Repayment of Revolving Credit Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Revolving Credit Loan of
such Lender on the Termination Date (or such earlier date on which the Revolving
Credit Loans become due and payable pursuant to Section 8). The Borrower hereby
further agrees to pay interest on the unpaid principal amount of the Revolving
Credit Loans from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates, set forth in subsection
3.4.
2.6 CAF Advances. Subject to the terms and conditions of this
Agreement, the Borrower may borrow CAF Advances from time to time on any
Business Day during the CAF Advance Availability Period. CAF Advance shall be
denominated in Dollars. CAF Advances may be borrowed in amounts such that the
aggregate amount of Loans outstanding at any time shall not exceed the aggregate
amount of the Revolving Credit Commitments at such time. Within the limits and
on the conditions hereinafter set forth with respect to CAF Advances, the
Borrower from time to time may borrow, repay and reborrow CAF Advances.
2.7 Procedure for CAF Advance Borrowing. (a) The Borrower
shall request CAF Advances by delivering a CAF Advance Request to the
Administrative Agent, not later than 12:00 Noon (New York City time) four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and having not more than three alternative CAF Advance Maturity Dates.
The CAF Advance Maturity Date for each CAF Advance shall be the date set forth
therefor in the relevant CAF Advance Request, which date shall be (i) not less
than 7 days nor more than 360 days after the Borrowing Date therefor, in the
case of a Fixed Rate CAF Advance, (ii) not less than one month nor more than
twelve months after the Borrowing Date therefor, in the case of a LIBO CAF
Advance and (iii) not later than the Termination Date, in the case of any CAF
Advance. The Administrative Agent shall notify each Lender promptly by facsimile
transmission of the contents of each CAF Advance Request received by the
Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender
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may elect, in its sole discretion, to offer irrevocably to make one or more CAF
Advances at the Eurodollar Rate plus (or minus) a margin determined by such
Lender in its sole discretion for each such CAF Advance. Any such irrevocable
offer shall be made by delivering a CAF Advance Offer to the Administrative
Agent, before 10:30 A.M. (New York City time) on the day that is three Business
Days before the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date and the aggregate maximum amount of CAF Advances for all
CAF Advance Maturity Dates which such Lender would be willing to make
(which amounts may, subject to subsection 2.6, exceed such Lender's
Revolving Credit Commitment); and
(ii) the margin above or below the Eurodollar Rate at which
such Lender is willing to make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 11:00 A.M. (New York
City time) on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Borrower of
the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on
the date which is three Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at a rate of interest determined by
such Lender in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the
Administrative Agent before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Lender would be willing to make (which
amounts may, subject to subsection 2.6, exceed such Lender's Revolving
Credit Commitment); and
(ii) the rate of interest at which such Lender is willing to
make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 10:00 A.M. (New York
City time) on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the Borrower of the contents of its CAF Advance Offer before
9:15 A.M. (New York City time) on the proposed Borrowing Date.
(d) Before 11:30 A.M. (New York City time) three Business Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF
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Advance Request) and before 10:30 A.M. (New York City time) on the proposed
Borrowing Date (in the case of CAF Advances requested by a Fixed Rate CAF
Advance Request), the Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.7(e), accept one or more of the offers made
by any Lender or Lenders pursuant to subsection 2.7(b) or subsection
2.7(c), as the case may be, and (B) reject any remaining offers made by
Lenders pursuant to subsection 2.7(b) or subsection 2.7(c), as the case
may be.
(e) The Borrower's acceptance of CAF Advances in response to
any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall
not exceed the maximum amount for such CAF Advance Maturity Date
specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF
Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Borrower may not accept offers for CAF Advances for
any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF
Advance Request; and
(iv) if the Borrower accepts any of such offers, it must
accept offers based solely upon pricing for each relevant CAF Advance
Maturity Date and upon no other criteria whatsoever, and if two or more
Lenders submit offers for any CAF Advance Maturity Date at identical
pricing and the Borrower accepts any of such offers but does not wish
to (or, by reason of the limitations set forth in subsection 2.6,
cannot) borrow the total amount offered by such Lenders with such
identical pricing, the Borrower shall accept offers from all of such
Lenders in amounts allocated among them pro rata according to the
amounts offered by such Lenders (with appropriate rounding, in the sole
discretion of the Borrower, to assure that each accepted CAF Advance is
an integral multiple of $1,000,000); provided that if the number of
Lenders that submit offers for any CAF Advance Maturity Date at
identical pricing is such that, after the Borrower accepts such offers
pro rata in accordance with the foregoing provisions of this paragraph,
the CAF Advance to be made by any such Lender would be less than
$5,000,000 principal amount, the number of such Lenders shall be
reduced by the Administrative Agent by lot until the CAF Advances to be
made by
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each such remaining Lender would be in a principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof.
(f) If the Borrower notifies the Administrative Agent that a
CAF Advance Request is cancelled pursuant to subsection 2.7(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection 2.7(d)(ii)
one or more of the offers made by any Lender or Lenders, the Administrative
Agent promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Lender. Before 12:00 Noon (New York City
time) on the Borrowing Date specified in the applicable CAF Advance Request,
each Lender whose CAF Advance Offer has been accepted shall make available to
the Administrative Agent the amount of CAF Advances to be made by such Lender,
in immediately available funds, at the funding office specified from time to
time by the Administrative Agent by notice to the Lenders. The Administrative
Agent will make such funds available to the Borrower as soon as practicable on
such date at such office of the Administrative Agent. As soon as practicable
after each Borrowing Date, the Administrative Agent shall notify each Lender of
the aggregate amount of CAF Advances advanced on such Borrowing Date and the
respective CAF Advance Maturity Dates thereof.
2.8 Repayment of CAF Advances. The Borrower hereby
unconditionally promises to pay to the Administrative Agent, for the account of
each Lender which has made a CAF Advance, on the applicable CAF Advance Maturity
Date the then unpaid principal amount of such CAF Advance. The Borrower shall
have the right to prepay any principal amount of any CAF Advance only with the
consent of the Lender to which such CAF Advance is owed. The Borrower hereby
further agrees to pay interest on the unpaid principal amount of each CAF
Advance from the Borrowing Date to the applicable CAF Advance Maturity Date at
the rate of interest specified in the CAF Advance Offer accepted by the Borrower
in connection with such CAF Advance (calculated on the basis of a 360-day year
for actual days elapsed), payable on each applicable CAF Advance Interest
Payment Date.
2.9 Certain Restrictions with Respect to CAF Advances. A CAF
Advance Request may request offers for CAF Advances to be made on not more than
one Borrowing Date and to mature on not more than three CAF Advance Maturity
Dates. No CAF Advance Request may be submitted earlier than five Business Days
after submission of any other CAF Advance Request.
SECTION 3. CERTAIN PROVISIONS
APPLICABLE TO THE LOANS
3.1 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Revolving Credit Loans, in whole or in part,
without premium or penalty (other than any amounts payable pursuant to
subsection 3.11 if such prepayment is of Eurodollar Loans and is made on a day
other than the last day of the Interest Period with
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respect thereto), upon at least four Business Days' irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and,
if of a combination thereof, the amount allocable to each. Upon receipt of any
such notice the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein.
3.2 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurodollar
Loans and ABR Loans may be converted as provided herein, provided that (i) no
Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Majority
Lenders have determined that such a conversion is not appropriate and (ii) no
Loan may be converted into a Eurodollar Loan after the date that is one month
prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date, and
provided, further, that if the Borrower shall fail to give such notice or if
such continuation is not permitted, such Loans shall be automatically converted
to ABR Loans on the last day of such then expiring Interest Period.
3.3 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Revolving Credit Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. In no event shall there be more than 7 Tranches outstanding at any
time.
3.4 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
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(c) Each CAF Advance shall bear interest at the rate
determined in accordance with subsection 2.7.
(d) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any facility fee or utilization fee or (iv)
any other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), the principal of the Loans and
any such overdue interest, commitment fee or other amount shall bear interest at
a rate per annum which is (x) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) in the case of any such overdue interest, facility
fee, utilization fee or other amount, the rate described in paragraph (b) of
this subsection plus 2%, in each case from the date of such non-payment until
such overdue principal, interest, facility fee or other amount is paid in full
(as well after as before judgment).
(e) Interest pursuant to this subsection shall be payable in
arrears on each Interest Payment Date or CAF Advance Interest Payment Date, as
the case may be, provided that interest accruing pursuant to paragraph (d) of
this subsection shall be payable from time to time on demand.
3.5 Computation of Interest and Fees. (a) Whenever it is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest and fees shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
3.4(a) or (c).
(c) If any Reference Lender shall for any reason no longer
have a Commitment or any Loans, such Reference Lender shall thereupon cease to
be a Reference Lender, and if, as a result, there shall only be one Reference
Lender remaining, the Administrative Agent (after consultation with the Lenders
and with the consent of the Borrower (which consent shall not be unreasonably
withheld)) shall, by notice to the Borrower and the Lenders, designate another
Lender as a Reference Lender so that there shall at all times be at least two
Reference Lenders.
(d) Each Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
If any of the Reference Lenders
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shall be unable or shall otherwise fail to supply such rates to the
Administrative Agent upon its request, the rate of interest shall, subject to
the provisions of subsection 3.6, be determined on the basis of the quotations
of the remaining Reference Lenders or Reference Lender.
3.6 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (w) any Eurodollar Loans, requested to be made on the first day of such
Interest Period shall be made as ABR Loans, provided, that, notwithstanding the
provisions of subsection 2.2, the Borrower may cancel the request for such
Eurodollar Loan, by written notice to the Administrative Agent one Business Day
prior to the first day of such Interest Period and the Borrower shall not be
subject to any liability pursuant to subsection 3.11 with respect to such
cancelled request, (x) any Loans that were to have been converted on the first
day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans
and (y) any outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans.
3.7 Pro Rata Treatment and Payments. (a) Each payment (other
than optional prepayments) of principal or interest in respect of the Loans
shall be made pro rata according to the amounts then due and owing to the
respective Lenders.
(b) Each borrowing by the Borrower of Revolving Credit Loans
from the Lenders hereunder shall be made pro rata according to the Revolving
Credit Commitment Percentages of the Lenders in effect on the date of such
borrowing. Each payment by the Borrower on account of any facility fee hereunder
and any reduction of the Revolving Credit Commitments of the Lenders shall be
allocated by the Administrative Agent among the Lenders pro rata according to
the Revolving Credit Commitment Percentages of the Lenders. Each payment
(including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Credit Loans shall be made pro rata according to the
respective outstanding principal amounts of the Revolving Credit Loans then due
and owing to the Lenders. All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or
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counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in subsection 10.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day (and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension) unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon equal to the rate per annum applicable
to ABR Loans hereunder, on demand, from the Borrower.
3.8 Illegality. Notwithstanding any other provision herein, if
after the date hereof the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Agreement,
(a) the commitment of such Lender hereunder to make Eurodollar Loans or continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 3.11.
3.9 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any
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Lender with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof (or, in the case of LIBO Rate CAF Advances, made subsequent to
acceptance by the Borrower of such LIBO Rate CAF Advance):
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Eurodollar Loan or LIBO
Rate CAF Advance made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by subsection 3.10 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate, as the
case may be; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or LIBO Rate CAF Advances or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, the Borrower shall promptly pay such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduced amount
receivable; provided, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
(b) If any Lender shall have determined that after the date
hereof the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Lender's or such corporation's capital as
a consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction; provided, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
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(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable pursuant
to this subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
3.10 Taxes. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent (A)
two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224, or successor applicable form, as the case may be,
and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
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(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 10.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
3.11 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans or CAF
Advances after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans or CAF Advances or the conversion of Eurodollar Loans to ABR Loans on a
day which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) or, in the case of CAF Advances, the applicable CAF Advance Maturity
Date (or proposed CAF Advance Maturity Date), in each case at the applicable
rate of interest for such Loans provided for herein (excluding, however, the
Applicable Margin or any positive margin applicable to CAF Advances included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) which would have accrued to such Bank on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
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3.12 Change of Lending Office; Removal of Lender. Each Lender
agrees that if it makes any demand for payment under subsection 3.9 or 3.10(a),
or if any adoption or change of the type described in subsection 3.8 shall occur
with respect to it, (i) it will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrower to make payments
under subsection 3.9 or 3.10(a), or would eliminate or reduce the effect of any
adoption or change described in subsection 3.8 or (ii) it will, upon at least
five Business Days' notice from the Borrower to such Lender and the
Administrative Agent, assign, pursuant to and in accordance with the provisions
of subsection 10.6(c), to one or more Assignees designated by the Borrower all,
but not less than all, of such Lender's rights and obligations hereunder (other
than rights in respect of such Lender's outstanding CAF Advance), without
recourse to or warranty by, or expense to, such Lender, for a purchase price
equal to the outstanding principal amount of each Revolving Credit Loan then
owing to such Lender plus any accrued but unpaid interest thereon and any
accrued but unpaid facility fees and utilization fees owing thereto and, in
addition, all additional costs and reimbursements, expense reimbursements and
indemnities, if any, owing in respect of such Lender's Revolving Credit
Commitment hereunder at such time (including any amount that would be payable
under subsection 3.11 if such assignment were, instead, a prepayment in full of
all amounts owing to such Lender) shall be paid to such Lender.
3.13 Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain the Register
pursuant to subsection 10.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) in the case of Revolving Credit Loans, the amount of
each Revolving Credit Loan made hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) in the case of CAF Advances, the amount and
currency of each CAF Advance made hereunder, the CAF Advance Maturity Date
thereof, the interest rate applicable thereto and each CAF Advance Interest
Payment Date applicable thereto, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iv) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(c) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 3.13(a) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
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(d) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit A with appropriate
insertions as to date and principal amount (a "Revolving Credit Note").
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the CAF Advances of
such Lender, substantially in the form of Exhibit B with appropriate insertions
(a "CAF Advance Note").
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1997 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Ernst & Young LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at March 31, 1998, or, if later and prior to the Signing Date, the date of the
Borrower's most recent publicly available Form 10-Q and the related unaudited
consolidated statements of income and of cash flows for the fiscal period ended
on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and materially correct
and present fairly (subject to normal year-end audit adjustments) the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal period then ended. All such
annual financial statements, including the related schedules and notes thereto,
were, as of the date prepared, prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as disclosed
therein). The quarterly financial statements have been prepared in accordance
with generally accepted accounting principles for interim financial information
and with the instructions to Form 10-Q and Article 10 of Regulation S-X under
the Securities Act of 1933. Accordingly, such quarterly statements do not
include all of the information and footnotes required by GAAP for complete
financial statements. In the opinion of the Borrower, all adjustments
(consisting only of normal recurring accruals) considered necessary for a fair
presentation have been included. Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, material contingent
liability or material liability for taxes, or any material long-term lease or
material unusual forward or long-term commitment, including,
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without limitation, any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or in the notes
thereto.
4.2 No Change. Since December 31, 1997 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except to the extent that the failure of the foregoing clauses (a) (only
with respect to Subsidiaries of the Borrower), (c) and (d) to be true and
correct could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
The Borrower has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and to
borrow hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required with respect to the Borrower or any of its Subsidiaries in connection
with the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Borrower is a
party. This Agreement and each other Loan Document to which the Borrower is, or
is to become, a party has been or will be, duly executed and delivered on behalf
of the Borrower. This Agreement and each other Loan Document to which the
Borrower is, or is to become, a party constitutes or will constitute, a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
4.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation which
could reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 1998, or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, no
litigation, investigation or proceeding of or
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before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby, or (b) which could reasonably be expected to have a
Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Intellectual Property. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 1998, or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, the
Borrower and each of its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, technology, know-how and processes necessary
for the conduct of its business as currently conducted except for those the
failure to own or license which could not reasonably be expected to have a
Material Adverse Effect (the "Intellectual Property"). Except as disclosed in
the Borrower's Form 10-Q dated March 31, 1998, or, if later and prior to the
Signing Date, the date of the Borrower's most recent publicly available Form
10-Q, no claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of
any valid basis for any such claim, except for such claims that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Except as disclosed in the Borrower's Form 10-Q dated March 31, 1998, or, if
later and prior to the Signing Date, the date of the Borrower's most recent
publicly available Form 10-Q, the use of such Intellectual Property by the
Borrower and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
4.9 Taxes. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Borrower,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no material claim is being
asserted, with respect to any such tax, fee or other charge.
4.10 Federal Regulations. No part of the proceeds of any Loans
will be used in any manner which would violate Regulation U of the Board as now
and from time to time hereafter in effect.
4.11 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has
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occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan other than a
Multiemployer Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code, where the liability which could be
reasonably expected to result could have a Material Adverse Effect; provided,
however, that with respect to any Multiemployer Plan, such representation is
made only to the knowledge of the Borrower. No termination of a Single Employer
Plan pursuant to Section 4041(c) or 4042 of ERISA has occurred, and no Lien in
favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan and
to the knowledge of the Borrower, neither the Borrower nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made which liability could be
reasonably expected to result could have a Material Adverse Effect. No such
Multiemployer Plan is in Reorganization or Insolvent.
4.12 Investment Company Act; Other Regulations. The Borrower
is not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board) which limits its ability to
incur Indebtedness.
4.13 Purpose of Loans. The proceeds of the Loans shall be used
to finance or refinance the working capital and general corporate needs of the
Borrower and its Subsidiaries, including to finance the Schneider Acquisition.
4.14 Environmental Matters. Except to the extent that the
failure of the following statements to be true and correct could not reasonably
be expected to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") do not
contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i) constitute
or constituted a violation of, or (ii) could reasonably be expected to
give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and there is
no contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business
operated by the Borrower or any of its Subsidiaries (the "Business")
which could reasonably be expected to materially interfere with the
continued operation of the Properties or materially impair the fair
saleable value thereof.
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(c) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties
or the Business, nor does the Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location which could reasonably be expected to give rise
to liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of
at, on or under any of the Properties in violation of, or in a manner
that could reasonably be expected to give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any Subsidiary is
or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that
could reasonably be expected to give rise to liability under
Environmental Laws.
4.15 Disclosure. The statements and information contained
herein and in any of the information provided to the Administrative Agent or the
Lenders in writing (other than financial projections) in connection with this
Agreement, taken as a whole, do not contain any untrue statement of any material
fact, or omit to state a fact necessary in order to make such statements or
information not misleading in any material respect, in each case in light of the
circumstances under which such statements were made or information provided as
of the date so provided. The financial projections contained in the July 1998
Confidential Information Memorandum furnished to the Administrative Agent and
the Lenders in writing in connection with this Agreement have been prepared in
good faith based upon assumptions which were reasonable when such projections
were made, it being acknowledged that such projections are subject to the
uncertainty inherent in all projections of future results and that there can be
no assurance that the results set forth in such projections will in fact be
realized.
4.16 Year 2000 Matters. Except as disclosed in the Borrower's
filings with the Securities and Exchange Commission, the Borrower expects that
the cost of ensuring that its computer systems are Year 2000 compliant should
not have a Material Adverse Effect and that its year 2000 remediation will be
substantially completed prior to any anticipated material impact on its
operations.
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SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loans. The agreement of each Lender
to make the initial Loan requested to be made by it is subject to the
satisfaction on the Closing Date of the following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by a duly authorized
officer of the Borrower, with a counterpart for each Lender.
(b) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit
F, with appropriate insertions and attachments, satisfactory in form
and substance to the Administrative Agent, executed by the President or
any Vice President and the Secretary or any Assistant Secretary of the
Borrower.
(c) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of the Closing Date as if made on and as of the Closing Date.
(d) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal
opinion of counsel to the Borrower (which opinion may be delivered in
part by in-house counsel to the Borrower), covering the matters set
forth in Exhibit G. Such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(e) Approvals. All governmental and third party approvals
necessary in connection with the execution, delivery and performance of
this Agreement and the other Loan Documents shall have been obtained
and be in full force and effect.
(f) Financial Statements; Pro Forma Projected Consolidated
Capitalization. The Lenders shall have received (i) satisfactory
audited consolidated financial statements of the Borrower and its
consolidated Subsidiaries for the two most recent fiscal years ended
prior to the Closing Date as to which such financial statements are
available, (ii) satisfactory unaudited interim consolidated financial
statements of the Borrower and its consolidated Subsidiaries for each
quarterly period ended subsequent to the date of the latest financial
statements delivered pursuant to clause (i) of this paragraph as to
which such financial statements are available and (iii) a satisfactory
pro forma projected consolidated capitalization of the Borrower as
anticipated at December 31, 1998, adjusted to give effect to the
Schneider Acquisition and the financing contemplated hereby.
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(g) Medium Term Facility. The Closing Date under (and as
defined in) the Medium Term Facility shall occur simultaneously with
the Closing Date hereunder.
5.2 Conditions to Each Loan. The agreement of each Lender to
make any Loan requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or pursuant to
the Loan Documents (other than, in the case of any Loan made after the
Closing Date, the representations and warranties in subsections 4.2 and
4.6) shall be true and correct in all material respects on and as of
such date as if made on and as of such date and, in the case of any
Loan made on the Closing Date, after giving effect to the consummation
of the Schneider Acquisition.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 110 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and stockholders' equity and of cash flows for
such year, setting forth in each case in comparative form the figures
for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by Ernst & Young LLP or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries
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as at the end of such quarter and the related unaudited consolidated
statements of income for such quarter and the portion of the fiscal
year through the end of such quarter and of cash flows of the Borrower
and its consolidated Subsidiaries for the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein); provided, that it is hereby acknowledged that the
quarterly financial statements delivered pursuant to paragraph (b) above may not
include all of the information and footnotes required by GAAP for complete
annual financial statements.
6.2 Certificates; Other Information. Furnish to the
Administrative Agent with sufficient copies for the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and 6.1(b), a certificate of a
Responsible Officer stating that such Officer has obtained no knowledge
of any Default or Event of Default that has occurred and is continuing
except as specified in such certificate, and including calculations
demonstrating compliance with subsection 7.1;
(b) within ten days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority, and promptly after the same are
issued, copies of all press releases issued by the Borrower; and
(c) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as conducted by it on the Signing
Date and preserve, renew and keep in full force and effect its corporate
existence and (except as could not in the aggregate be reasonably expected to
have a Material Adverse Effect) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal
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conduct of its business except as otherwise permitted pursuant to subsection
7.3; comply with all Contractual Obligations and Requirements of Law except to
the extent that failure to comply therewith could not, in the aggregate, be
reasonably expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. Keep all property
necessary in its business in good working order and condition except to the
extent that failure to do so could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect; maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks as are adequate for conducting its business; and
furnish to each Lender, upon written request, full information as to the
insurance carried.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
involving the Borrower or any of its Subsidiaries, which in either
case, could reasonably be expected to have a Material Adverse Effect;
and
(c) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan, other than the termination of any Single Employer Plan
pursuant to Section 4041(b) of ERISA where, in connection with any of
the foregoing, the amount of liability the Borrower or any Commonly
Controlled Entity could reasonably be expected to incur would be
material.
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Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
6.8 Consummation of Schneider Acquisition. Consummate, in
accordance with applicable law, except to the extent that the failure to comply
with applicable law could not be reasonably expected to have a Material Adverse
Effect on the Borrower and its Subsidiaries taken as a whole, the Schneider
Acquisition within 5 Business Days of the Closing Date.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments (or any of them) remain in effect or any amount is owing to
any Lender or the Administrative Agent hereunder or under any other Loan
Document, the Borrower shall not, and (except with respect to subsection 7.1)
shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Funded Debt Ratio. Permit the ratio of (i) Consolidated
Funded Debt to (ii) the sum of (A) Consolidated Net Worth and (B) Consolidated
Funded Debt, to be at any time greater than (x) .70 to 1.0 through the earlier
date referred to in clause (y), or (y) after the earlier of (1) the date which
is six months after the Closing Date and (2) the date of issuance by the
Borrower of Capital Stock for cash consideration in excess of $500,000,000, .60
to 1.0.
7.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance
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bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) 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
Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule
7.2, provided that no such Lien is spread to cover any additional
property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries incurred to finance the acquisition of fixed or capital
assets, provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;
(h) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof, provided that (i) such
Liens existed at the time such corporation became a Subsidiary and were
not created in anticipation thereof, (ii) any such Lien is not spread
to cover any property or assets of such corporation after the time such
corporation becomes a Subsidiary, and (iii) the amount of Indebtedness
secured thereby is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$100,000,000 in aggregate amount at any time outstanding.
7.3 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more wholly owned Subsidiaries of the Borrower (provided that
the wholly owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation);
(b) the Borrower or any wholly owned Subsidiary of the
Borrower may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any other wholly owned Subsidiary, and, so long as no Default or
Event of Default shall have occurred and be continuing or would occur
as a result thereof, the Borrower or any Subsidiary of the Borrower may
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sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to any non-wholly owned
Subsidiary of the Borrower for fair market value;
(c) any non-wholly owned Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any wholly owned
Subsidiary of the Borrower for fair market value or may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to any other non-wholly owned
Subsidiary of the Borrower; and
(d) the Borrower or any Subsidiary of the Borrower may be
merged or consolidated with or into another Person; provided that the
Borrower or such Subsidiary shall be the continuing or surviving
corporation and no Default or Event of Default shall have occurred and
be continuing or would occur as a result thereof (and, in the case of
any such transaction involving a Subsidiary such Subsidiary shall
continue to be a Subsidiary or the Borrower shall have received fair
market value therefor as determined by the Board of Directors of the
Borrower); and provided further that the Borrower may not be merged or
consolidated with or into any Subsidiary.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
when due in accordance with the terms thereof or hereof; or the
Borrower shall fail to pay any interest on any Loan, or any other
amount payable hereunder, within five days after any such interest or
other amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or which is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this Agreement shall prove
to have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) (i) The Borrower shall default in the observance or
performance of any covenant contained in subsection 6.8 or in Section
7; or (ii) the Borrower shall default in the observance or performance
of any other agreement contained in this Agreement (other than as
provided above in this Section), and such default described in this
clause (ii) shall continue unremedied for a period of 30 days; or
(d) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest of any Indebtedness (other
than the Loans) or in the payment of any Guarantee Obligation, beyond
the period of grace, if any, provided in the
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instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; provided, however, that
no Default or Event of Default shall exist under this paragraph unless
the aggregate amount of Indebtedness and/or Guarantee Obligations in
respect of which any default or other event or condition referred to in
this paragraph shall have occurred shall be equal to at least
$100,000,000; or
(e) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any of its Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not or shall admit in writing its
inability to, pay its debts as they become due; or
(f) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
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appointment of a trustee is likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or
any Commonly Controlled Entity shall incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or in excess of the amount recoverable by
insurance) of $100,000,000 (net of any related tax benefit) or more,
and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(h) (i) Any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (A)
shall have acquired beneficial ownership of 30% or more of any
outstanding class of Capital Stock having ordinary voting power in the
election of directors of the Borrower or (B) shall obtain the power
(whether or not exercised) to elect a majority of the Borrower's
directors or (ii) the Board of Directors of the Borrower shall not
consist of a majority of Continuing Directors; "Continuing Directors"
shall mean the directors of the Borrower on the Closing Date and each
other director, if such other director's nomination for election to the
Board of Directors of the Borrower is recommended by a majority of the
then Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) of this Section with respect to the
Borrower, automatically the Revolving Credit Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Revolving
Credit Commitments to be terminated forthwith, whereupon the Revolving Credit
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 9. THE ADMINISTRATIVE AGENT; THE ARRANGER
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan
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Documents, and each Lender irrevocably authorizes the Administrative Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
9.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The
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Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Majority Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Revolving Credit Commitment Percentages in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Revolving Credit Commitments shall have
terminated and the Loans shall have been paid in full, ratably in
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accordance with such percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of, the
Revolving Credit Commitments, this Agreement, any of the other Loan Documents or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements which are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Borrower), shall succeed to the rights,
powers and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor agent, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
9.10 The Arranger, the Book Manager and the Syndication
Agents. None of the Arranger, the Book Manager or the Syndication Agents shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Arranger, the Book Manager or the Syndication Agents
shall have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on the Arranger,
the Book Manager or the Syndication Agents in deciding to enter into this
Agreement or in taking or not taking any action hereunder.
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SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Majority Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate or amount of any
interest or fee payable hereunder or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration date of any Lender's
Revolving Credit Commitment, in each case without the consent of each Lender
affected thereby, or (ii) amend, modify or waive any provision of this
subsection or reduce the percentages specified in the definitions, of Majority
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, in
each case without the written consent of all the Lenders, or (iii) amend, modify
or waive any provision of Section 9 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Administrative Agent and all future holders
of the Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth in Schedule I in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto:
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The Borrower: Boston Scientific Corporation
One Boston Scientific Place
Natick, Massachusetts 01760
Attention: Lawrence C. Best
Chief Financial Officer and
Senior Vice President,
Finance & Administration
Fax: 508-650-8951
with a copy to:
General Counsel's Office
Fax: 508-650-8960
The Administrative Loan & Agency Services Group
Agent: One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Janet Belden
Fax: 212-552-5658
with a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Dawn Lee Lum
Fax: 212-270-3279
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.7 or 3.2 shall not be
effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses
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incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or reimburse
each Lender and the Administrative Agent for all its costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Lender and of counsel
to the Administrative Agent, provided, that in connection with any workout or
restructuring, the Borrower shall pay the fees and disbursements of (i) one
counsel for the Administrative Agent and the Lenders pursuant to this clause (b)
and (ii) one counsel to the Administrative Agent and the Lenders in the
jurisdiction of each Foreign Subsidiary Borrower pursuant to this clause (b),
(c) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents including, without limitation, any
of the foregoing relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower, any
of its Subsidiaries or any of the Properties (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided that the Borrower
shall have no obligation hereunder to the Administrative Agent or any Lender
with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of the Administrative Agent or any such Lender. The
agreements in this subsection shall survive repayment of the Loans and all other
amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent and their respective successors
and assigns, except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
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responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Loan Document except for those specified
in clauses (i) and (ii) of the proviso to subsection 10.1(a). The Borrower
agrees that if amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in subsection 10.7(a) as fully
as if it were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of subsections 3.9, 3.10 and 3.11 with respect
to its participation in the Revolving Credit Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of subsection 3.10, such Participant shall have complied with the requirements
of said subsection and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof of comparable
credit-worthiness or, with the consent of the Borrower (unless a Default or an
Event of Default shall have occurred and be continuing) and the Administrative
Agent (which in each case shall not be unreasonably withheld), to an additional
bank, financial institution or other entity (an "Assignee") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
H, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an Affiliate thereof, by the Borrower and
the Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the case of any such
assignment to an additional bank, financial institution or other entity , the
sum of the aggregate principal amount of the Loans and the aggregate amount of
the unused Revolving Credit Commitment being assigned shall be not less than
$10,000,000 and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Revolving Credit Loans and the aggregate amount of the unused Revolving
Credit Commitment remaining with the assigning Lender shall be not less than
$10,000,000 (or such lesser amount as may be agreed to by the Borrower and the
Administrative Agent). Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment
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and Acceptance, have the rights and obligations of a Lender hereunder with
Revolving Credit Commitments as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
10.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Revolving Credit Commitments of, and principal amount of the Loans owing
to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Borrower (if required) and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $3500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 10.14, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of such and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Loans then
due and owing, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by
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set-off, pursuant to events or proceedings of the nature referred to in Section
8(e), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans then due and owing, or interest thereon, such benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
57
52
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 10.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
10.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.14 Confidentiality. Each Lender agrees to keep confidential
any written or oral information (a) provided to it by or on behalf of the
Borrower or any of its Subsidiaries pursuant to or in connection with this
Agreement or (b) obtained by such Lender based on a
58
53
review of the books and records of the Borrower or any of its Subsidiaries;
provided that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Administrative Agent or any other Lender, (ii) to any
Transferee which receives such information having been made aware of the
confidential nature thereof and having agreed to abide by the provisions of this
subsection 10.14, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors, and to employees and officers of
its Affiliates who agree to be bound by the terms of this subsection 10.14 and
who have a need for such information in connection with this Agreement or other
transactions or proposed transactions with the Borrower, (iv) upon the request
or demand of any Governmental Authority having jurisdiction over such Lender,
(v) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (vi) which has
been publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
10.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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54
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
BOSTON SCIENTIFIC CORPORATION
By: _________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: _________________________
Name:
Title:
CHASE SECURITIES INC.,
as Arranger and as Book Manager
By: _________________________
Name:
Title:
ABN AMRO BANK N.V.,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
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55
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
BARCLAYS BANK PLC,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
ALLIED IRISH BANKS, P.L.C.
By: _________________________
Name:
Title:
BANCA COMMERCIALE ITALIANA
By: _________________________
Name:
Title:
BANCA MONTE DEL PASCHI DI SIENA S.P.A.
By: _________________________
Name:
Title:
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56
BANK OF IRELAND
By: _________________________
Name:
Title:
BANK OF NEW YORK
By: _________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: _________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI LIMITED
By: _________________________
Name:
Title:
BANKERS TRUST
By: _________________________
Name:
Title:
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57
BANQUE NATIONALE DE PARIS
By: _________________________
Name:
Title:
COMMERZBANK A.G.
By: _________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By: _________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: _________________________
Name:
Title:
FLEET NATIONAL BANK
By: _________________________
Name:
Title:
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58
THE FUJI BANK, LIMITED
By: _________________________
Name:
Title:
MELLON BANK, N.A.
By: _________________________
Name:
Title:
NATIONSBANK, N.A.
By: _________________________
Name:
Title:
SVENSKA HANDELSBANKEN
By: _________________________
Name:
Title:
TORONTO DOMINION BANK
By: _________________________
Name:
Title:
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59
UBS AG
By: _________________________
Name:
Title:
U.S. BANK, N.A.
By: _________________________
Name:
Title:
65
SCHEDULE I
NAMES, ADDRESSES AND COMMITMENTS OF LENDERS
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
THE CHASE MANHATTAN BANK $43,636,363.64
270 Park Avenue
New York, NY 10017
Attn: Dawn Lee Lum
Telecopy: (212) 270-3279
- --------------------------------------------------------------------------------
ABN AMRO BANK N.V. 40,909,090.91
1 Post Office Square, 39th Floor
Boston, MA 02109
Attn: Brian Horgan
Telecopy: (617) 988-7910
- --------------------------------------------------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION 40,909,090.91
335 Madison Avenue
New York, NY 10017
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BARCLAYS BANK PLC 40,909,090.91
222 Broadway
New York, NY 10038
Attn:
Telecopy:
- --------------------------------------------------------------------------------
66
2
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
ALLIED IRISH BANKS PLC 24,545,454.55
Bank Centre, Ballsbridge
Dublin 4
Ireland
Attn: Dermot J. Duffy
Telecopy: 353 1 6682508
- --------------------------------------------------------------------------------
BANCA COMERCIALE ITALIANA 24,545,454.55
One William Street, 6th Floor
New York, NY 10004
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANCA MONTE DEL PASCHI DI SIENA S.P.A. 13,636,363.64
55 East 59th Street
New York, NY 10022
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANK OF IRELAND 13,636,363.64
Lower Baggot Street
Dublin 2
Ireland
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANK OF NEW YORK 13,636,363.64
One Wall Street
New York, NY 10286
Attn:
Telecopy:
- --------------------------------------------------------------------------------
67
3
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA 32,727,272.73
101 Federal Street
Boston, MA 02208
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANK OF TOKYO-MITSUBISHI 24,545,454.55
1251 Avenue of the Americas
New York, NY 10116-3138
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANKERS TRUST 32,727,272.73
One Bankers Trust Plaza
New York, NY 10006
Attn:
Telecopy:
- --------------------------------------------------------------------------------
BANQUE NATIONALE DE PARIS 13,636,363.64
499 Park Avenue
New York, NY 10022
Attn:
Telecopy:
- --------------------------------------------------------------------------------
COMMERZBANK A.G. 24,545,454.55
2 World Financial Center
New York, NY 10281
Attn: Robert Donohue
Telecopy: (212) 266-7595
- --------------------------------------------------------------------------------
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4
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
THE DAI-ICHI KANGYO BANK, LIMITED 32,727,272.73
One World Trade Center, Suite 4911
New York, NY 10048
Attn: Thomas Fennessey
Telecopy: (212) 912-1879
- --------------------------------------------------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO 24,545,454.55
One First National Plaza
Chicago, IL 60670
Attn: Latanya Driver (re: Boston Scientific)
Telecopy: (312) 732-4840
- --------------------------------------------------------------------------------
FLEET NATIONAL BANK 32,727,272.73
One Federal Street
Boston, MA 02211
Attn:
Telecopy:
- --------------------------------------------------------------------------------
THE FUJI BANK, LIMITED 13,636,363.64
Two World Trade Center, 79th Floor
New York, NY 10048
Attn: Roy Tanfield
Telecopy: (212) 321-9407
- --------------------------------------------------------------------------------
MELLON BANK, N.A. 13,636,363.64
One Boston Place, 6th Floor
Boston, MA 02108
Attn: Rita Long
Telecopy: (617) 722-3516
- --------------------------------------------------------------------------------
69
5
================================================================================
Lender and Address Revolving Credit Commitment
- --------------------------------------------------------------------------------
NATIONSBANK, N.A. 32,727,272.73
100 N. Tryon Street
Charlotte, NC 28255
Attn:
Telecopy:
- --------------------------------------------------------------------------------
SVENSKA HANDELSBANKEN 13,636,363.64
153 East 53rd Street
New York, NY 10022
Attn:
Telecopy:
- --------------------------------------------------------------------------------
TORONTO DOMINION BANK 13,636,363.64
31 West 52nd Street
New York, NY 10019-6101
Attn:
Telecopy:
- --------------------------------------------------------------------------------
UBS AG 13,636,363.64
299 Park Avenue
New York, NY 10171
Attn:
Telecopy:
- --------------------------------------------------------------------------------
U.S. BANK, N.A. 24,545,454.55
First Bank Place,
Minneapolis, MN 55402-4302
Attn:
Telecopy:
- --------------------------------------------------------------------------------
TOTAL $600,000,000
================================================================================