EXECUTION COPY
CREDIT AGREEMENT
DATED AS OF
MAY 16, 1997
AMONG
W. R. GRACE & CO.-CONN.,
W. R. GRACE & CO.,
The Banks Party Hereto,
and
THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS
Page
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 Commitments........................................... 14
2.2 Obligations of Borrowers; Revolving Credit Notes
.................................................. 15
2.3 Procedure for Revolving Credit Borrowing.............. 16
SECTION 3. BILATERAL OPTION LOANS................................ 16
3.1 Requests for Offers................................... 16
3.2 Reports to Administrative Agent; Determination
of Dollar Equivalents.............................. 17
3.3 Judgment Currency..................................... 18
3.4 Repayments............................................ 18
SECTION 4. BID LOANS............................................. 19
4.1 The Bid Loans......................................... 19
4.2 Procedure for Bid Loans............................... 19
4.3 Repayments............................................ 21
4.4 Interest on Bid Loans................................. 21
4.5 Obligations of Borrowers; Bid Loan Notes.............. 21
SECTION 5. LOAN FACILITY COMMON PROVISIONS....................... 22
5.1 Interest Rates and Payment Dates...................... 22
5.2 Facility Fee.......................................... 23
5.3 Termination or Reduction of Commitments; Change
of Control Date.................................... 24
5.4 Prepayments........................................... 25
5.5 Conversion and Continuation Options................... 26
5.6 Minimum Amounts of Eurodollar Tranches................ 26
5.7 Computation of Interest and Fees...................... 26
5.8 Inability to Determine Interest Rate.................. 27
5.9 Pro Rata Treatment and Payments....................... 27
5.10 Illegality............................................ 29
5.11 Requirements of Law................................... 30
5.12 Taxes................................................. 31
5.13 Indemnity............................................. 32
SECTION 6. REPRESENTATIONS AND WARRANTIES........................ 33
6.1 Corporate Existence; Compliance with Law.............. 33
6.2 Corporate Power, Authorization; Enforceable
Obligations........................................ 33
6.3 No Legal Bar.......................................... 34
6.4 No Material Litigation................................ 34
6.5 Ownership of Properties............................... 34
6.6 Financial Condition................................... 34
6.7 Disclosure of Contingent Liabilities.................. 35
6.8 ERISA................................................. 35
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Page
6.9 Certain Federal Regulations........................... 35
6.10 No Default............................................ 35
6.11 Taxes................................................. 35
6.12 Investment Company Act; Other Regulations............. 36
6.13 Purpose of Loans...................................... 36
6.14 Environmental Matters................................. 36
6.15 Principal Subsidiaries................................ 36
SECTION 7. CONDITIONS PRECEDENT.................................. 36
7.1 Conditions to Effectiveness........................... 36
7.2 Conditions to Each Loan............................... 38
SECTION 8. AFFIRMATIVE COVENANTS................................. 38
8.1 Financial Statements.................................. 39
8.2 Certificates; Other Information....................... 39
8.3 Payment of Obligations................................ 40
8.4 Conduct of Business and Maintenance of Existence
.................................................. 40
8.5 Insurance............................................. 41
8.6 Inspection of Property, Books and Records;
Discussions........................................ 41
8.7 Notices............................................... 41
8.8 Environmental Laws.................................... 42
SECTION 9. NEGATIVE COVENANTS.................................... 43
9.1 Financial Condition Covenants......................... 43
9.2 Limitation on Liens................................... 43
9.3 Limitation on Fundamental Changes..................... 45
9.4 Limitation on Asset Transfers to Foreign
Subsidiaries....................................... 45
9.5 Limitation on Subordinated Debt....................... 46
SECTION 10. EVENTS OF DEFAULT..................................... 46
SECTION 11. THE ADMINISTRATIVE AGENT.............................. 49
11.1 Appointment........................................... 49
11.2 Delegation of Duties.................................. 49
11.3 Exculpatory Provisions................................ 49
11.4 Reliance by Administrative Agent...................... 50
11.5 Notice of Default..................................... 50
11.6 Non-Reliance on Administrative Agent and Other
Banks.............................................. 50
11.7 Indemnification....................................... 51
11.8 Administrative Agent in Its Individual Capacity....... 52
11.9 Successor Administrative Agent........................ 52
SECTION 12. GUARANTEES............................................ 52
12.1 Parent Guarantee...................................... 52
12.2 Company Guarantee..................................... 53
12.3 No Subrogation, Contribution, Reimbursement or
Indemnity.......................................... 53
12.4 Amendments, etc., with respect to the
Obligations........................................ 54
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Page
12.5 Guarantee Absolute and Unconditional.................. 54
12.6 Reinstatement......................................... 55
12.7 Payments.............................................. 56
SECTION 13. MISCELLANEOUS......................................... 56
13.1 Amendments and Waivers; Replacement of Banks.......... 56
13.2 Notices............................................... 57
13.3 No Waiver; Cumulative Remedies........................ 58
13.4 Survival of Representations and Warranties............ 58
13.5 Payment of Expenses and Taxes......................... 59
13.6 Successors and Assigns; Participations;
Purchasing Banks................................... 60
13.7 Adjustments; Set-off.................................. 63
13.8 Counterparts.......................................... 64
13.9 Severability.......................................... 64
13.10 Integration........................................... 64
13.11 GOVERNING LAW......................................... 64
13.12 Submission to Jurisdiction; Waivers................... 64
13.13 Acknowledgments....................................... 65
13.14 WAIVERS OF JURY TRIAL................................. 66
13.15 Additional Borrowers.................................. 66
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SCHEDULES
Schedule I Commitments; Lending Offices and Addresses for
Notices
Schedule II Principal Subsidiaries
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Bid Loan Note
Exhibit C Form of Bid Loan Confirmation
Exhibit D Form of Bid Loan Offer
Exhibit E Form of Bid Loan Request
Exhibit F-1 Form of Opinion of Counsel to the Company and the
Parent
Exhibit F-2 Form of Opinion of Simpson Thacher & Bartlett
Exhibit G Form of Officer's Certificate
Exhibit H Form of Commitment Transfer Supplement
Exhibit I Form of Notice of Additional Borrower
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CREDIT AGREEMENT, dated as of May 16, 1997, among
W. R. GRACE & CO.-CONN., a Connecticut corporation (the "Company"), W. R.
GRACE & CO., a Delaware corporation and sole shareholder of the Company (the
"Parent"), the several banks from time to time parties to this Agreement (the
"Banks"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Banks hereunder (in such capacity, the
"Administrative Agent").
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 Loans": Loans the rate of interest applicable
to which is based upon the Alternate Base Rate.
"Affiliate": as to any Person, (a) 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 or (b) any Person who is a director, officer, shareholder or
partner (i) of such Person, (ii) of any Subsidiary of such Person or
(iii) of any Person described in the preceding clause (a). For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (i) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (ii) direct or cause the direction of the
management and policies of such Person whether by contract or
otherwise.
"Aggregate Outstanding Bilateral Option Loans": at
any time, (i) the aggregate outstanding principal amount of
all Dollar Bilateral Loans and (ii) the aggregate Dollar
Equivalents at such time with respect to all outstanding
Alternative Currency Bilateral Loans.
"Agreement": this Credit Agreement, as the same
may be amended, supplemented or otherwise modified from time
to time.
"Alternate Base Rate": for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City. "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. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds
Effective Rate, for any reason, including, the inability or failure
of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"Alternative Currency": any currency other than
Dollars which is freely transferable and convertible into
Dollars.
"Alternative Currency Bilateral Loan": a Loan made
by a Bank to any Borrower in an Alternative Currency
pursuant to Section 3.
"Applicable Margin": for any day on which the long
term senior unenhanced, unsecured debt of the Company is rated by
both S&P and Moody's, the rate per annum under the caption "Margin"
(a "Margin Rate") set forth below opposite the S&P and Moody's
ratings applicable to such debt on such day (or, if such ratings are
set opposite two different Margin Rates, then the Applicable Margin
shall be the lower of said two Margin Rates):
Margin S&P Moody's
.400% BB+ or lower Ba1 or lower
.250% BBB- Baa3
.215% BBB Baa2
.185% BBB+ Baa1
.175% A- or higher A3 or higher
provided that if on any day the long term senior unenhanced,
unsecured debt of the Company is rated by only one of either S&P or
Moody's, the Applicable Margin will be determined based on the rating
by such rating agency, and provided,
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further, that if on any day the long term senior unenhanced,
unsecured debt of the Company is rated by neither S&P nor Moody's,
the Applicable Margin will be determined based on the rating of such
debt by Duff & Phelps, Fitch or another nationally recognized
statistical rating organization agreed to by and among the Company,
the Administrative Agent and the Majority Banks (each, a "Substitute
Rating Agency") and will be the Margin Rate set forth above opposite
the S&P and Moody's ratings comparable to such Substitute Rating
Agency's rating of such debt on such date, and provided, further,
that if on any day the long term senior unenhanced, unsecured debt of
the Company is rated by none of S&P, Moody's or any Substitute Rating
Agency, the Company, the Administrative Agent and the Banks will
negotiate in good faith to determine an alternative basis for
calculating the Applicable Margin consistent with the table set forth
above and, if agreement on such alternative basis is not reached
within 30 days, the Applicable Margin will be calculated on an
alternative basis determined by the Administrative Agent and the
Banks in their reasonable discretion consistent with the table above,
and until such alternative basis is determined the Applicable Margin
will be the Applicable Margin last determined as provided in the
table above.
"Available Commitment": as to any Bank at any time, an
amount equal to the excess, if any, of (a) the amount of
such Bank's Commitment over (b) the Loan Outstandings of
such Bank at such time.
"Bid Loan": each Bid Loan made pursuant to Section 4.
"Bid Loan Banks": Banks which have outstanding Bid
Loans or which are making Bid Loans.
"Bid Loan Confirmation": each confirmation by the
Borrower of its acceptance of Bid Loan Offers, which Bid
Loan Confirmation shall be substantially in the form of
Exhibit C.
"Bid Loan Note": as defined in subsection 4.5(c);
collectively, the "Bid Loan Notes".
"Bid Loan Offer": each offer by a Bank to make Bid
Loans pursuant to a Bid Loan Request, which Bid Loan Offer
shall contain the information specified in Exhibit D.
"Bid Loan Request": each request by a Borrower for Banks to
submit bids to make Bid Loans at a fixed rate, which shall contain
the information in respect of such requested Bid Loans specified in
Exhibit E and shall be delivered to the Administrative Agent.
"Bilateral Option Loan": a Loan made by a Bank to a
Borrower pursuant to Section 3. Bilateral Option Loans may
3
be either Dollar Bilateral Loans or Alternative Currency
Bilateral Loans.
"Bilateral Option Loan Report": as defined in
subsection 3.2.
"Board": The Board of Governors of the Federal Reserve
System of the United States of America or any successor
thereto.
"Borrower": the Company and any Subsidiary of the
Company with respect to which a Notice of Additional
Borrower has been given and all conditions precedent to the
effectiveness thereof have been satisfied.
"Borrowing Date": any Business Day specified in a
notice pursuant to subsection 2.3 and 4.2, as a date on
which a Borrower requests the Banks to make Loans hereunder,
or any date that a Bilateral Option Loan is made in
accordance with subsection 3.1.
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are
authorized or required by law to close.
"Capitalized Lease": any lease of property, real or
personal, the obligations of the lessee in respect of which
are required to be capitalized in accordance with GAAP.
"Change of Control Date": (i) the first day on which the
Company determines that any Person or group of related Persons has
direct or indirect beneficial ownership of 30% or more of the
outstanding capital stock of the Parent having ordinary voting power
(other than stock having such power only by reason of the happening
of a contingency) for the election of a majority of the board of
directors of the Parent or (ii) the first day on which any Person or
group of related Persons shall acquire all or substantially all of
the assets of the Parent.
"Chase": The Chase Manhattan Bank.
"Closing Date": the first date on which the conditions
set forth in subsection 7.1 have been satisfied or waived.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment": as to any Bank, the obligation of such
Bank to make Revolving Credit Loans hereunder to the
Borrowers in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such
Bank's name on Schedule I under the heading "Commitment".
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"Commitment Percentage": as to any Bank at any time,
the percentage of the aggregate Commitments then constituted
by such Bank's Commitment.
"Commitment Period": the period from and including the
date hereof to but not including the Termination Date or
such earlier date on which the Commitments shall terminate
as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001(a)(14) of ERISA or is part of a group
which includes the Company and which is treated as a single employer
under subsection (b) or (c) of Section 414 of the Code.
"Consolidated Debt": at a particular date, with respect to
the Parent and its Subsidiaries, and without duplication, the sum of
the amounts set forth on a consolidated balance sheet of the Parent
and its Subsidiaries prepared as of such date in accordance with GAAP
opposite the captions (1) "Long-term debt" (or the equivalent
caption) and (2) "Short-term debt" (or the equivalent caption) but
always to include all indebtedness for borrowed money of the Parent
and its Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense": for any period, with
respect to the Parent and its Subsidiaries, the amount which, in
conformity with GAAP, would be set forth opposite the caption
"Interest expense and related financing costs" (or the equivalent
caption) on a consolidated statement of operations of the Parent and
its Subsidiaries for such period.
"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 10,
whether or not any requirement for the giving of notice, the
lapse of time, or both, has been satisfied.
"Dollar Bilateral Loan": a Bilateral Option Loan
denominated in Dollars.
"Dollar Equivalent": on any date of determination by the
Administrative Agent pursuant to subsection 3.2(b) or 3.2(c), as
applicable, in respect of any Alternative Currency Bilateral Loan the
amount of Dollars obtained by converting the outstanding amount of
currency of such Alterative Currency Bilateral Loan, as specified in
the then most recent Bilateral Option Loan Report, into Dollars at
5
the spot rate for the purchase of Dollars with such currency as
quoted by the Administrative Agent at its principal foreign exchange
trading operations office in New York City on such date.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Indebtedness": any Indebtedness of the
Parent and any Domestic Subsidiary.
"Domestic Subsidiary": any Subsidiary of the Parent
other than a Foreign Subsidiary.
"Duff & Phelps": Duff & Phelps, Inc.
"EBIT": for any period, with respect to the Parent and its
Subsidiaries, (a) all amounts which would be set forth opposite the
caption "Income from continuing operations before income taxes" (or
the equivalent caption) on a consolidated statement of operations of
the Parent and its Subsidiaries prepared in accordance with GAAP for
such period plus (b) non-cash pre-tax charges arising from: (1) asset
disposals (excluding the retirement of property, plant and equipment
in the ordinary course of business) by the Parent and its
Subsidiaries, (2) the implementation or modified application of
financial accounting standards applicable to the Parent and its
Subsidiaries, and (3) other special non-recurring transactions
(including charges relating to Restructuring Activities, discontinued
operations and asbestos related litigation and claims) (to the extent
that such amounts have been deducted in determining the amount set
forth opposite the caption "Income from continuing operations" (or
the equivalent caption) for such period), plus (c) Consolidated
Interest Expense for such period, plus (d) any payments received in
such period in respect of non-cash pre-tax gains referred to in
clause (e) of this definition, minus (e) non-cash pre-tax gains
arising from: (1) asset disposals (excluding the retirement of
property, plant and equipment in the ordinary course of business) by
the Parent and its Subsidiaries, (2) the implementation or modified
application of financial accounting standards applicable to the
Parent and its Subsidiaries, and (3) other special non-recurring
transactions (including charges relating to Restructuring Activities,
discontinued operations and asbestos related litigation and claims)
(to the extent that such amounts have been added in determining the
amount set forth opposite the caption "Income from continuing
operations" (or the equivalent caption) for such period), minus (f)
any payments made in such period in respect of non-cash pre-tax
charges referred to in clause (b) of this definition.
"EBITDA": for any period, EBIT plus all amounts which
would be set forth opposite the caption "Depreciation and
6
amortization" (or the equivalent caption) on a consolidated statement
of operations of the Parent and its Subsidiaries prepared in
accordance with GAAP for such period.
"Environmental Laws": any and all federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees or requirements of any Governmental Authority
regulating, relating to or imposing liability or standards of conduct
concerning environmental protection matters, including without
limitation, Hazardous Materials, 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 Eurodollar Loan, the aggregate (without duplication) of the
rates (expressed as a decimal fraction) of any reserve requirements
in effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations
of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D
of such Board) maintained by a member bank of such System.
"Eurodollar Loans": Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the rate at which Chase is offered Dollar deposits at or
about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Tranche": the collective reference to
Eurodollar Loans, the 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).
"Event of Default": any of the events specified in
Section 10, provided that any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
7
"Excluded Subsidiaries": GN Holdings, Inc., a Delaware
corporation; CCHP, Inc., a Delaware corporation; Assignment America,
Inc., a Delaware corporation; Cross Country Staffing, a Delaware
general partnership, and each of their respective Subsidiaries.
"Existing Credit Agreement": the Amended and Restated
Credit Agreement, dated as of May 17, 1996, among W. R.
Grace & Co.-Conn., W. R. Grace & Co., Grace Holding, Inc.,
the several banks from time to time parties thereto and
Chemical Bank, as administrative agent.
"FASB 5": Statement of Financial Accounting Standards
No. 5, Accounting for Contingencies, of the Financial
Accounting Standards Board, as the same may be from time to
time supplemented, amended or interpreted by such Board.
"Fitch": Fitch Investors Service Inc.
"Foreign Subsidiary": any Subsidiary of the Parent (i) that
is organized under the laws of any jurisdiction other than any state
(including the District of Columbia), territory or possession of the
United States of America (a "foreign jurisdiction"), or (ii) more
than 50 percent of the book value of the assets of which (as of the
end of the most recent fiscal period for which financial statements
are required to have been provided pursuant to subsection 8.1(a) or
(b)) are located in one or more foreign jurisdictions, or (iii) more
than 50 percent of the Net Sales and Revenues of which (for the most
recent fiscal year for which financial statements are required to
have been provided pursuant to subsection 8.1(a)) were from sales
made and/or services provided in one or more foreign jurisdictions,
or (iv) more than 50 percent of the book value of the assets of which
(as of the end of the most recent fiscal period for which financial
statements are required to have been provided pursuant to subsection
8.1(a) or (b)) consists of equity interests in and/or Indebtedness of
one or more Subsidiaries that are "Foreign Subsidiaries" within
clauses (i), (ii), (iii) or (iv) of this definition.
"Foreign Subsidiary Indebtedness": any Indebtedness of
any Foreign Subsidiary.
"GAAP": generally accepted accounting principles in
the United States of America in effect from time to time.
"Governmental Authority": any nation or government,
any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Hazardous Materials": any hazardous materials,
hazardous wastes, hazardous constituents, hazardous or toxic
8
substances, petroleum products (including crude oil or any fraction
thereof), defined or regulated as such in or under any Environmental
Law.
"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) or which is evidenced by a
note, bond, debenture or similar instrument, (b) all obligations of
such Person under Capitalized Leases, and (c) without duplication,
all "loss contingencies" of such Person of the types described in
paragraph 12 of FASB 5, whether or not disclosed or required to be
disclosed on the financial statements or footnotes thereto of such
Person pursuant to GAAP.
"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
fifteenth day of each March, June, September and December to occur
while such Loan is outstanding and, if different, the Termination
Date, and (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, if any, as agreed by the Borrower of such Loan and the Banks.
"Interest Period": with respect to any Eurodollar
Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one or two weeks,
or one, two, three or six months thereafter, or such other
period as may be requested by the Borrower and agreed to by
the Banks making such Loan, as selected by the Borrower of
such Loan 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 or two
weeks, or one, two, three or six months thereafter, or such
other period as may be requested by the Borrower and agreed
to by the Banks making such Loan, as selected by such
Borrower by irrevocable notice to the Administrative Agent
and the Banks which made such Eurodollar Loan not less than
two Business Days prior
9
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 pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise
extend beyond the Termination Date shall end on the
Termination Date; and
(3) any Interest Period pertaining to a Eurodollar
Loan 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.
"Lien": any mortgage, pledge, hypothecation, assignment as
security, security deposit arrangement, encumbrance, lien (statutory
or other), conditional sale or other title retention agreement or
other similar arrangement.
"Loan": any loan made by any Bank pursuant to this
Agreement.
"Loan Documents": this Agreement, the Notes and the Notices
of Additional Borrower.
"Loan Outstandings": as to any Bank at any time, the sum of
(a) the aggregate principal amount of all Revolving Credit Loans made
by such Bank then outstanding, and (b) such Bank's Commitment
Percentage multiplied by the aggregate principal amount of all Bid
Loans then outstanding.
"Loan Parties": the collective reference to the Company, the
other Borrowers and the Parent.
"Majority Banks": at any time, Banks the Commitment
Percentages of which aggregate (or, if at such time all of the
Commitments shall have been terminated, Banks the Commitment
Percentages of which immediately prior to such termination
aggregated) at least 51%.
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"Material Adverse Effect": a material adverse effect on (a)
the business, operations, properties, or condition (financial or
otherwise) of the Parent and its Subsidiaries taken as a whole, (b)
the ability of the Company, or any Borrower or any other Loan Party
to perform their respective obligations hereunder and under the other
Loan Documents to which such Person is a party, or (c) the validity
or enforceability of the Loan Documents or the rights or remedies of
the Administrative Agent or the Banks hereunder or thereunder.
"Moody's": Moody's Investors Services, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"Net Sales and Revenues": with respect to any Person for any
period, all sales and operating revenues of such Person during such
period computed in accordance with GAAP after deducting therefrom
sales returns, discounts and allowances.
"Notes": the collective reference to the Revolving Credit
Notes and the Bid Loan Notes, if any.
"Notice of Additional Borrower": as defined in subsection
13.15(a).
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to any of the Loan Parties or any of the
Borrowers, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and the Notes, if
any, and all other obligations and liabilities of any of the Loan
Parties or the Borrowers to the Administrative Agent or to the Banks,
whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, the Notes, any other
Loan Document and any other document made, delivered or given in
connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements
of counsel to the Administrative Agent or to the Banks that are
required to be paid by the Loan Parties and/or the Borrowers pursuant
to the terms of this Agreement) or any other obligation hereunder or
thereunder.
"Parent Guarantee": as defined in subsection 12.1.
"Participant": as defined in subsection 13.6(b).
11
"Payment Sharing Notice": a written notice from the Company
or any Bank informing the Administrative Agent that an Event of
Default has occurred and is continuing and directing the
Administrative Agent to allocate payments thereafter received from
the Borrower in accordance with subsection 5.9(c).
"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 Company 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.
"Prepayment Date": as defined in subsection 5.3(b).
"Principal Subsidiary": (a) any Borrower and (b) any other
Subsidiary if it shall have Total Assets at the end of the most
recent fiscal year for which financial statements are required to
have been furnished pursuant to subsection 8.1(a) in excess of
$75,000,000 or have had during such year Net Sales and Revenues in
excess of $75,000,000.
"Purchasing Banks": as defined in subsection 13.6(c).
"Register": as defined in subsection 13.6(d).
"Regulation U": Regulation U of the Board.
"Regulation X": Regulation X of the Board.
"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 requirement is waived under PBGC Reg. Section 4043.
"Requested Bank": as defined in subsection 3.1(a).
"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
12
each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the
president, the chief financial officer or the treasurer, assistant
treasurer or controller of, respectively, the Parent and the Company.
"Restructuring Activities": all reductions in carrying value
of assets or investments and provisions for the termination and/or
relocation of operations and employees.
"Revolving Credit Loans": as defined in subsection 2.1(a).
"Revolving Credit Notes": as defined in subsection 2.2.
"SEC": the Securities and Exchange Commission, and any
successor or analogous federal Governmental Authority.
"Single Employer Plan": any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group.
"Subsidiary": as to any Person, a corporation, partnership
or other entity which is required to be consolidated with such Person
in accordance with GAAP; provided, that any such corporation,
partnership or other entity which is controlled by a receiver or
trustee under any bankruptcy, insolvency or similar law shall
continue to be a "Subsidiary" of such Person for purposes of this
Agreement. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Parent.
"Substitute Rating Agency": as defined in the definition of
"Applicable Margin".
"Termination Date": May 16, 2002.
"Total Assets": with respect to any Person at any time, the
total of all assets appearing on the asset side of the balance sheet
of such Person prepared in accordance with GAAP as of such time.
"Transferee": as defined in subsection 13.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement
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shall have the defined meanings when used in the Notes, if any, or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Notes, if any, and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Parent and its Subsidiaries not 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 Commitments. (a) Subject to the terms and conditions
hereof, each Bank severally agrees to make revolving credit loans ("Revolving
Credit Loans") to any Borrower from time to time during the Commitment Period
in an aggregate principal amount at any one time outstanding not to exceed the
amount of such Bank's Commitment, provided that no Bank shall make any
Revolving Credit Loan if, after giving effect to such Loan, the aggregate Loan
Outstandings of all of the Banks plus the Aggregate Outstanding Bilateral
Option Loans would exceed the aggregate Commitments.
(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 thereof and notified to the Administrative Agent in accordance
with subsections 2.3 and 5.5, provided that no Revolving Credit Loan shall be
made as a Eurodollar Loan maturing after the Termination Date.
2.2 Obligations of Borrowers; Revolving Credit Notes. (a)
Each Borrower agrees that each Revolving Credit Loan made by each Bank to such
Borrower pursuant hereto shall constitute the promise and obligation of such
Borrower to pay to the Administrative Agent, on behalf of such Bank, at the
office of the Administrative Agent specified in subsection 13.2, in lawful
money of the United States of America and in immediately available funds the
aggregate unpaid principal amount of all Revolving Credit Loans made by such
Bank to such Borrower pursuant to subsection 2.1, which amounts shall be due
and payable (whether at maturity or by acceleration) as set forth in this
Agreement and, in any event, on the Termination Date.
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(b) Each Borrower agrees that each Bank and the
Administrative Agent are authorized to record (i) the date, amount and Type of
each Revolving Credit Loan made by such Bank to such Borrower pursuant to
subsection 2.1, (ii) the date of each continuation thereof pursuant to
subsection 5.5(b), (iii) the date of each conversion of all or a portion
thereof to another Type pursuant to subsection 5.5(a), (iv) the date and
amount of each payment or prepayment of principal of each such Revolving
Credit Loan and (v) in the case of each such Revolving Credit Loan which is a
Eurodollar Loan, the length of each Interest Period and the Eurodollar Rate
with respect thereto, in the books and records of such Bank or the
Administrative Agent, as the case may be, and in such manner as is reasonable
and customary for such Bank or the Administrative Agent, as the case may be,
and a certificate of an officer of such Bank or the Administrative Agent, as
the case may be, setting forth in reasonable detail the information so
recorded, shall constitute prima facie evidence of the accuracy of the
information so recorded; provided that the failure to make any such recording
shall not in any way affect the obligations of such Borrower hereunder.
(c) Each Borrower agrees that, upon the request to the
Administrative Agent by any Bank at any time, the Revolving Credit Loans made
by such Bank to such Borrower shall be evidenced by a promissory note of such
Borrower, substantially in the form of Exhibit A with appropriate insertions
as to Borrower, payee, date and principal amount (a "Revolving Credit Note"),
payable to the order of such Bank and in a principal amount equal to the
lesser of (a) the amount of the initial Commitment of such Bank and (b) the
aggregate unpaid principal amount of all Revolving Credit Loans made by such
Bank to such Borrower. Upon the request to the Administrative Agent by any
such Bank at any time, such Borrower shall execute and deliver to such Bank a
Revolving Credit Note conforming to the requirements hereof and executed by a
duly authorized officer of such Borrower. Each Bank is hereby authorized to
record the date, Type and amount of each Revolving Credit Loan made by such
Bank to such Borrower, each continuation thereof, each conversion of all or a
portion thereof to another Type, the date and amount of each payment or
prepayment of principal thereof and, in the case of Eurodollar Loans, the
length of each Interest Period and the Eurodollar Rate with respect thereto,
on the schedule annexed to and constituting a part of its Revolving Credit
Note and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded; provided that the failure to make any
such recording shall not in any way affect the obligations of such Borrower
hereunder or thereunder. Each Revolving Credit Note shall (x) be dated the
Closing Date, (y) be stated to mature on the Termination Date and (z) provide
for the payment of interest in accordance with subsection 5.1.
2.3 Procedure for Revolving Credit Borrowing. Any Borrower
may borrow under the Commitments from all Banks during the Commitment Period
on any Business Day, provided that such
15
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent (a) prior to 4:00 P.M., New York
City time, 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) prior to 10:00 A.M., New York City time, on the
requested Borrowing Date, otherwise), specifying (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the respective
amounts of each such Type of Loan and the respective lengths of the initial
Interest Periods therefor. Each borrowing under the Commitments shall be in an
amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof
(or, in the case of ABR Loans, if the amount of the Available Commitments
minus the Aggregate Outstanding Bilateral Option Loans is less than
$5,000,000, such lesser amount). Upon receipt of such notice from such
Borrower, the Administrative Agent shall promptly notify each Bank thereof.
Each Bank will make the amount of its pro rata share of each such borrowing
available to the Borrower at the office of the Administrative Agent specified
in subsection 13.2 prior to 12:00 noon, New York City time, on the Borrowing
Date requested by such Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to such
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Banks and in like funds as
received by the Administrative Agent.
SECTION 3. BILATERAL OPTION LOANS
3.1 Requests for Offers. (a) From time to time during the
period from the Closing Date until the Termination Date, any Borrower may
request any or all of the Banks (each such Bank to which such a request is
made, a "Requested Bank") to make offers to make Bilateral Option Loans,
provided that immediately after making any such Bilateral Option Loan, the
aggregate Loan Outstandings of all the Banks plus the Aggregate Outstanding
Bilateral Option Loans will not exceed the aggregate Commitments. Any such
request shall specify the principal amount and maturity date of the Bilateral
Option Loans for which such Borrower is requesting offers, whether such
Bilateral Option Loans are requested to be Dollar Bilateral Loans or
Alternative Currency Bilateral Loans, the time by which offers to make such
Bilateral Option Loans must be made by such Requested Bank and by which such
offers shall be accepted or rejected by such Borrower, and if all or any part
of the requested Bilateral Option Loans are requested to be made as
Alternative Currency Bilateral Loans, the Alternative Currency to be
applicable thereto. Each Requested Bank may, but shall have no obligation to,
make such offers on such terms and conditions as are satisfactory to such
Requested Bank, and such Borrower may, but shall have no obligation to, accept
any such offers. No Bilateral Option Loan may mature after the Termination
Date.
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(b) Each Borrower and Requested Bank shall separately agree
as to the procedures, documentation, lending office and other matters relating
to any Bilateral Option Loan.
3.2 Reports to Administrative Agent; Determination of Dollar
Equivalents. (a) The Borrower shall deliver to the Administrative Agent a
report in respect of each Bilateral Option Loan (a "Bilateral Option Loan
Report") by 2:00 P.M. (New York City time) on the date on which the applicable
Borrower accepts any Bilateral Option Loan, on the date on which any principal
amount thereof is repaid prior to the scheduled maturity date, or on the
scheduled maturity date if payment thereof is not made on such scheduled
maturity date, specifying for such Bilateral Option Loan the date on which
such Bilateral Option Loan was or will be made, such amount of principal is or
will be repaid or such payment was not made as the case may be; in the case of
Alternative Currency Bilateral Loans, the Alternative Currency thereof; and
the principal amount of such Bilateral Option Loan or principal prepayment or
repayment or the amount paid (in the case of any Alternative Currency
Bilateral Loan, expressed in the Alternative Currency therefor).
(b) Upon receipt of a Bilateral Option Loan Report with
respect to the acceptance of a Bilateral Option Loan, the Administrative Agent
shall determine the Dollar Equivalent
thereof.
(c) If on any Borrowing Date on which after giving effect to
the Loans made on such date, the sum of the aggregate Loan Outstandings of all
the Banks plus the Aggregate Outstanding Bilateral Option Loans exceeds 85% of
the aggregate Commitments, then the Administrative Agent shall redetermine as
of such Borrowing Date, on the basis of the most recently delivered Bilateral
Option Loan Report for each Bilateral Option Loan, the Dollar Equivalent of
each Alternative Currency Bilateral Loan then outstanding. In addition, for so
long as the condition specified in the preceding sentence remains in effect,
the Administrative Agent shall determine, at the end of each fiscal quarter of
the Company, on the basis of the most recently delivered Bilateral Option Loan
Report for each Bilateral Option Loan, the Dollar Equivalent of each
Alternative Currency Bilateral Loan then outstanding.
(d) The Administrative Agent shall promptly notify the
Company of each Dollar Equivalent under this subsection 3.2.
3.3 Judgment Currency. If for the purpose of obtaining
judgment in any court, it is necessary to convert a sum due from any Borrower
hereunder or under any of the Notes in the currency expressed to be payable
herein or under the Notes (the "specified currency") into another currency,
the parties hereto agree, to the fullest extent that they may effectively do
so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase the
specified currency with such other
17
currency at the Administrative Agent's New York office on the Business Day
preceding that on which final judgment is given. The obligations of each
Borrower in respect of any sum due to any Bank or the Administrative Agent
hereunder or under any Note shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on
the Business Day following receipt by such Bank or the Administrative Agent
(as the case may be) of any sum adjudged to be so due in such other currency
such Bank or the Administrative Agent (as the case may be) may in accordance
with normal banking procedures purchase the specified currency with such other
currency; if the amount of the specified currency so purchased is less than
the sum originally due to such Bank or the Administrative Agent, as the case
may be, in the specified currency, each Borrower agrees, to the fullest extent
that it may effectively do so, as a separate obligation and notwithstanding
any such judgment, to indemnify such Bank or the Administrative Agent, as the
case may be, against such difference, and if the amount of the specified
currency so purchased exceeds:
(a) the sum originally due to any Bank or the Administrative
Agent, as the case may be, and
(b) any amounts shared with other Banks as a result of
allocations of such excess as a disproportionate payment to such Bank
under subsection 13.7,
such Bank or the Administrative Agent, as the case may be, agrees to remit
such excess to the applicable Borrower.
3.4 Repayments. Each Borrower shall repay to each Bank which
has made a Bilateral Option Loan on the maturity date of each Bilateral Option
Loan (such maturity date being that specified in the documentation referred to
in subsection 3.1(a)) the then unpaid principal amount of such Bilateral
Option Loan.
SECTION 4. BID LOANS
4.1 The Bid Loans. Any Borrower may borrow Bid Loans from
time to time on any Business Day during the period from the Closing Date until
the Termination Date, in the manner set forth in this Section 4 and in amounts
such that the aggregate Loan Outstandings of all the Banks at any time plus
the Aggregate Outstanding Bilateral Option Loans at such time will not exceed
the aggregate Commitments at such time, and provided, further, that no such
Bid Loan shall be made if, after giving effect thereto, any Bid Loans would
mature after the Termination Date.
4.2 Procedure for Bid Loans. (a) A Borrower shall request
Bid Loans by delivering a Bid Loan Request to the Administrative Agent, in
writing, by facsimile transmission, or by telephone, confirmed by facsimile
transmission, not later than 1:00 P.M. (New York City time) one Business Day
prior to the proposed Borrowing Date. Each Bid Loan Request may solicit bids
18
for Bid Loans in an aggregate principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and for not more than three
alternative maturity dates for such Bid Loans. The Administrative Agent shall
promptly notify each Bank by facsimile transmission of the contents of each
Bid Loan Request received by it.
(b) Upon receipt of notice from the Administrative Agent of
the contents of a Bid Loan Request, any Bank that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more Bid Loans at
a rate of interest determined by such Bank in its sole discretion for each
such Bid Loan. Any such irrevocable offer shall be made by delivering a Bid
Loan Offer to the Administrative Agent, by telephone, immediately confirmed by
facsimile transmission, before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth the maximum amount of Bid Loans for each
maturity date, and the aggregate maximum amount for all maturity dates, which
such Bank would be willing to make (which amounts may, subject to subsection
4.1, exceed such Bank's Commitments) and the rate of interest at which such
Bank is willing to make each such Bid Loan; 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 Bid Loan Offer received by it. If
the Administrative Agent in its capacity as a Bank shall, in its sole
discretion, elect to make any such offer, it shall advise the Borrower of the
contents of its Bid Loan Offer before 9:15 A.M. (New York City time) on the
proposed Borrowing Date.
(c) The Borrower shall before 10:30 A.M. (New York City
time) on the proposed Borrowing Date, in its absolute discretion, either:
(i) cancel such Bid Loan Request by giving the
Administrative Agent telephone notice to that effect, and
the Administrative Agent shall give prompt telephone notice
thereof to the Banks and the Bid Loans requested thereby
shall not be made; or
(ii) accept one or more of the offers made by any
Bank or Banks by giving telephone notice to the
Administrative Agent (confirmed as soon as practicable
thereafter by delivery to the Administrative Agent of a Bid
Loan Confirmation in writing or by facsimile transmission)
of the amount of Bid Loans for each relevant maturity date
to be made by each Bank (which amount for each such maturity
date shall be equal to or less than the maximum amount for
such maturity date specified in the Bid Loan Offer of such
Bid Loan Bank, and for all maturity dates included in such
Bid Loan Offer shall be equal to or less than the aggregate
maximum amount specified in such Bid Loan Offer for all such
maturity dates) and reject
19
any remaining offers made by Banks; provided, however, that
(x) the Borrower may not accept offers for Bid Loans for any
maturity date in an aggregate principal amount in excess of
the maximum principal amount requested in the related Bid
Loan Request, (y) if the Borrower accepts any of such
offers, it must accept offers strictly based upon pricing
for such relevant maturity date and no other criteria
whatsoever and (z) if two or more Banks submit offers for
any 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 4.1 or in
clause (x) of this proviso, cannot) borrow the total amount
offered by such Banks with such identical pricing, the
Borrower shall accept offers from all of such Banks in
amounts allocated among them pro rata according to the
amounts offered by such Banks.
(d) If the Borrower accepts pursuant to clause (c) (ii)
above one or more of the offers made by any Bid Loan Bank or Bid Loan Banks,
the Administrative Agent shall notify before 11:00 A.M. (New York City time)
each Bid Loan Bank which has made such an offer, of the aggregate amount of
such Bid Loans to be made on such Borrowing Date for each maturity date and of
the acceptance or rejection of any offers to make such Bid Loans made by such
Bid Loan Bank. Each Bid Loan Bank which is to make a Bid Loan shall, before
12:00 Noon (New York City time) on the Borrowing Date specified in the Bid
Loan Request applicable thereto, make available to the Administrative Agent at
its office set forth in subsection 13.2 the amount of Bid Loans to be made by
such Bid Loan Bank, in immediately available funds. The Administrative Agent
will make such funds available to the Borrower at or before 2:00 P.M. (New
York City time) on such date at the Administrative Agent's aforesaid address.
As soon as practicable after each Borrowing Date, the Administrative Agent
shall notify each Bank of the aggregate amount of Bid Loans advanced on such
Borrowing Date and the respective maturity dates thereof.
4.3 Repayments. Each Borrower shall repay to the
Administrative Agent for the account of each Bid Loan Bank which has made a
Bid Loan on the maturity date of each Bid Loan (such maturity date being that
specified by the Borrower for repayment of such Bid Loan in the related Bid
Loan Request) the then unpaid principal amount of such Bid Loan. The Borrowers
shall not have the right to prepay any principal amount of any Bid Loan
without the prior written consent of the Bid Loan Bank which made such Bid
Loan.
4.4 Interest on Bid Loans. Each Borrower which shall have
borrowed a Bid Loan shall pay interest on the unpaid principal amount of such
Bid Loan from the Borrowing Date to the stated maturity date thereof, at the
rate of interest determined
20
pursuant to subsection 4.2 above (calculated on the basis of a 360 day year
for actual days elapsed), payable on the interest payment date or dates
specified by such Borrower for such Bid Loan in the related Bid Loan Request.
If all or a portion of the principal amount of any Bid Loan shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), such
overdue principal amount shall, without limiting any rights of any Bank under
this Agreement, bear interest from the date on which such payment was due at a
rate per annum which is 2% above the rate which would otherwise be applicable
to such Bid Loan until the scheduled maturity date with respect thereto, and
for each day thereafter at a rate per annum which is 2% above the Alternate
Base Rate until paid in full (as well after as before judgment).
4.5 Obligations of Borrowers; Bid Loan Notes. (a) Each
Borrower agrees that each Bid Loan made by each Bid Loan Bank to such Borrower
pursuant hereto shall constitute the promise and obligation of such Borrower
to pay to the Administrative Agent, on behalf of such Bid Loan Bank, at the
office of the Administrative Agent specified in subsection 13.2, in lawful
money of the United States of America and in immediately available funds the
aggregate unpaid principal amount of each Bid Loan made by such Bid Loan Bank
to such Borrower pursuant to subsection 4.2, which amounts shall be due and
payable (whether at maturity or by acceleration) as set forth in the Bid Loan
Request related to such Bid Loan and in this Agreement.
(b) Each Borrower agrees that each Bid Loan Bank and the
Administrative Agent are authorized to record (i) the date and amount of each
Bid Loan made by such Bid Loan Bank to such Borrower pursuant to subsection
4.2, and (ii) the date and amount of each payment or prepayment of principal
of each such Bid Loan, in the books and records of such Bid Loan Bank or the
Administrative Agent, as the case may be, and in such manner as is reasonable
and customary for such Bank or the Administrative Agent, as the case may be,
and a certificate of an officer of such Bid Loan Bank or the Administrative
Agent, as the case may be, setting forth in reasonable detail the information
so recorded, shall constitute prima facie evidence of the accuracy of the
information so recorded; provided that the failure to make any such recording
shall not in any way affect the obligations of such Borrower hereunder.
(c) Each Borrower agrees that, upon the request to the
Administrative Agent by any Bid Loan Bank at any time, the Bid Loans made by
such Bid Loan Bank to any Borrower shall be evidenced by a promissory note of
such Borrower, substantially in the form of Exhibit B with appropriate
insertions (a "Bid Loan Note"), payable to the order of such Bid Loan Bank and
representing the obligation of such Borrower to pay the unpaid principal
amount of all Bid Loans made by such Bid Loan Bank, with interest on the
unpaid principal amount from time to time outstanding of each Bid Loan
evidenced thereby as prescribed in
21
subsection 4.4. Upon the request to the Administrative Agent by any such Bid
Loan Bank at any time, such Borrower shall execute and deliver to such Bid
Loan Bank a Bid Loan Note conforming to the requirements hereof and executed
by a duly authorized officer of such Borrower. Each Bid Loan Bank is hereby
authorized to record the date and amount of each Bid Loan made by such Bank,
the maturity date thereof, the date and amount of each payment of principal
thereof and the interest rate with respect thereto on the schedule annexed to
and constituting part of its Bid Loan Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so
recorded; provided, however, that the failure to make any such recordation
shall not affect the obligations of such Borrower hereunder or under any Bid
Loan Note. Each Bid Loan Note shall be dated the Closing Date and each Bid
Loan evidenced thereby shall bear interest for the period from and including
the Borrowing Date thereof on the unpaid principal amount thereof from time to
time outstanding at the applicable rate per annum determined as provided in,
and such interest shall be payable as specified in, subsection 4.4.
SECTION 5. LOAN FACILITY COMMON PROVISIONS
5.1 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.
(b) Each ABR Loan shall bear interest at a fluctuating rate
per annum equal to the Alternate Base Rate.
(c) Except as otherwise provided in subsection 4.4, if all
or a portion of (i) the principal amount of any Loan or (ii) any interest
payable thereon shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is (x) in the case of overdue 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 overdue interest, the rate described
in paragraph (b) of this subsection plus 2%, in each case from the date of
such non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of
this subsection shall be payable on demand.
(e) Subject to the limitations set forth herein, each
Borrower may use the Loans by borrowing, prepaying and reborrowing the Loans,
all in accordance with the terms and conditions hereof.
22
5.2 Facility Fee. (a) The Company agrees to pay to the
Administrative Agent for the account of each Bank a facility fee for the
period from and including the date hereof to the Termination Date, computed at
the rate per annum determined as set forth in paragraph (b) of this subsection
on the average daily amount of the Commitment of such Bank during the period
for which payment is made, payable quarterly in arrears on the fifteenth day
of each March, June, September and December and on the Termination Date or
such earlier date as the Commitments shall terminate as provided herein,
commencing on the first of such dates to occur after the date hereof.
(b) The rate per annum at which such facility fee under
paragraph (a) above shall be computed (the "Applicable Facility Fee Rate"),
for any day on which the long term senior unenhanced, unsecured debt of the
Company is rated by both S&P and Moody's, shall be the rate per annum under
the caption "Facility Fee Rate" (a "Facility Fee Rate") set forth below
opposite the S&P and Moody's ratings applicable to such debt on such day (or,
if such ratings are set opposite two different rates under said caption, then
the Applicable Facility Fee Rate shall be the lower of said two Facility Fee
Rates):
FACILITY FEE
RATE S&P MOODY'S
- ----------------------------------------------------
.2000% BB+ or lower Ba1 or lower
.1500% BBB- Baa3
.1100% BBB Baa2
.0900% BBB+ Baa1
.0750% A- or higher A3 or higher
provided that if on any day the long term senior unenhanced, unsecured debt of
the Company is rated by only one of S&P or Moody's, such rate will be
determined based on the rating by such rating agency, and provided, further,
that if on any day the long term senior unenhanced, unsecured debt of the
Company is rated by neither S&P nor Moody's, the Applicable Facility Fee Rate
will be determined based on the rating of such debt by a Substitute Rating
Agency and will be the Facility Fee Rate set forth above opposite the S&P and
Moody's ratings comparable to the Substitute Rating Agency's rating of such
debt on such date, and provided, further, that if on any day the long term
senior unenhanced, unsecured debt of the Company is rated by none of S&P,
Moody's or any Substitute Rating Agency, the Company, the Administrative Agent
and the Banks will negotiate in good faith to determine an alternative basis
for calculating such rate consistent with the table set forth above and, if
agreement on such alternative basis is not reached with 30 days, such rate
will be calculated on an alternative basis determined by the Administrative
Agent and the Banks in their reasonable discretion consistent with the table
23
above, and until such alternative basis is determined such rate will be the
rate last determined as provided in the table above.
5.3 Termination or Reduction of Commitments; Change of
Control Date. (a) The Company shall have the right, upon not less than five
Business Days' notice to the Administrative Agent, to terminate the
Commitments or, from time to time, to reduce the amount of the Commitments,
provided that no such termination or reduction shall be permitted to the
extent that, after giving effect thereto and to any prepayments of Loans made
on the effective date thereof, the sum of the aggregate Loan Outstandings of
all the Banks, plus the Aggregate Outstanding Bilateral Option Loans would
exceed the Commitments then in effect. Any such partial reduction shall be in
an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and shall reduce permanently the Commitments then in effect.
(b) (i) In the event that a Change of Control Date shall
occur, (A) the Company shall, within 10 days after such Change of Control
Date, give each Bank notice thereof in writing describing in reasonable detail
the facts and circumstances giving rise thereto, and (B) such Bank, by written
notice given to the Company not later than 30 days after the Change of Control
Date, may declare the Commitments of such Bank to be terminated in full or
reduced as of the date of (or as of a later date specified in) such notice to
the Company, and may require that the Borrowers prepay as provided in this
subsection 5.3 any Loans payable to such Bank and outstanding on such date to
the extent the principal amount thereof exceeds such Bank's Commitment, if
any, remaining after such termination or reduction. To the extent such Bank so
requires, the Borrowers shall prepay such Loans on the 75th day after the date
of the Company's notice or, in the event such 75th day is not a Business Day,
the Business Day next succeeding such 75th day ("Prepayment Date").
(ii) On the Prepayment Date, the Borrowers shall
prepay the unpaid principal amount of the Loans payable to such Bank, without
premium or penalty, together with accrued interest on the amount prepaid to
the Prepayment Date.
(iii) Subsections 5.9(a), (b) and (c) shall not apply
to prepayments under this subsection 5.3(b).
(iv) Paragraph (a) of this subsection 5.3 hereof shall
not apply to any Commitment reductions pursuant to this paragraph (b).
(v) In the event that a Change of Control Date shall
occur, the Company shall not thereafter, without the prior written consent of
the Majority Banks, borrow any additional Loan (other than a Bilateral Option
Loan) in order to make, directly or indirectly, any payment or prepayment on
any Indebtedness subordinated as to the payment of principal and interest or
on liquidation to the prior payment of any of the Obligations.
24
5.4 Prepayments. (a) Any Borrower may at any time and from
time to time upon at least four Business Days' irrevocable notice to the
Administrative Agent, in the case of Eurodollar Loans, or upon at least one
Business Day's irrevocable notice to the Administrative Agent, in the case of
ABR Loans, prepay the Loans (other than Bid Loans), in whole or in part,
without premium or penalty (subject to subsection 5.13), 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 Bank thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein. Partial prepayments shall be in an aggregate principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) If at any time, the Administrative Agent shall determine
(which determination shall be conclusive in the absence of manifest error)
that the sum of the aggregate Loan Outstandings of all the Banks plus the
Aggregate Outstanding Bilateral Option Loans exceeds the aggregate
Commitments, the Borrowers shall immediately prepay the Loans in an aggregate
principal amount equal to such excess.
5.5 Conversion and Continuation Options. (a) Any Borrower
may elect at any time and from time to time (subject to subsection 5.13) to
convert its Eurodollar Loans to ABR Loans by giving the Administrative Agent
at least two Business Days' prior irrevocable notice of such election. Any
Borrower may elect at any time and from time to time to convert its ABR Loans
to Eurodollar Loans by giving the Administrative Agent irrevocable notice of
such election (which notice must be received by the Administrative Agent prior
to 4:00 P.M., New York City time, three Business Days prior to the requested
conversion date). Any such notice of conversion to Eurodollar Loans shall
specify the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Bank 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 or the Majority Banks
have determined that such a conversion is not appropriate, and (ii) any such
conversion may only be made if, after giving effect thereto, subsection 5.6
shall not have been contravened.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower thereof 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
25
continuing and the Administrative Agent or the Majority Banks have determined
that such a continuation is not appropriate, or (ii) if, after giving effect
thereto, subsection 5.6 would be contravened and provided, further, that if
any Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to ABR Loans on the last
day of such then expiring Interest Period.
5.6 Minimum Amounts of Eurodollar Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of the Loans comprising each Eurodollar Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.
5.7 Computation of Interest and Fees. (a) Interest on ABR
Loans and facility fees shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. Interest on
Eurodollar Loans 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 Borrowers and the Banks of each determination of a Eurodollar Rate.
Any change in the interest rate on a Loan resulting from a change in the Prime
Rate shall become effective as of the opening of business on the day on which
such change in the Prime Rate is announced. The Administrative Agent shall as
soon as practicable notify the Borrowers and the Banks 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 Borrowers and the Banks in the absence of
manifest error. The Administrative Agent shall, at the request of the Company,
deliver to the Company a statement showing in reasonable detail the quotations
and calculations used by the Administrative Agent in determining any interest
rate pursuant to subsections 5.1 and 5.7(a).
5.8 Inability to Determine Interest Rate. In the event that
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 Borrowers)
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 Banks that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Banks (as
26
conclusively certified by such Banks) of making or
maintaining their affected Loans during such Interest
Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrowers and the Banks as soon as practicable thereafter. If such notice
is given (x) any Eurodollar Loans requested to be made on the first day of
such Interest Period shall be made as ABR Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar
Loans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the first day of such Interest Period, to ABR Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall any Borrower
have the right to convert Loans to Eurodollar Loans.
5.9 Pro Rata Treatment and Payments. (a) Each borrowing by
any Borrower of Revolving Credit Loans from the Banks hereunder, each payment
by the Company on account of any facility fee hereunder, and any reduction of
the Commitments of the Banks shall be made pro rata according to the
respective Commitment Percentages of the Banks.
(b) Whenever any payment received by the Administrative
Agent or any Bank under this Agreement or any Note is insufficient to pay in
full all amounts then due and payable to the Administrative Agent and the
Banks under this Agreement and the Notes, and the Administrative Agent has not
received a Payment Sharing Notice (or if the Administrative Agent has received
a Payment Sharing Notice but the Event of Default specified in such Payment
Sharing Notice has been cured or waived), such payment shall be distributed
and applied by the Administrative Agent and the Banks in the following order:
first, to the payment of fees and expenses due and payable to the
Administrative Agent in its capacity as Administrative Agent under and in
connection with this Agreement; second, to the payment of all expenses due and
payable under subsection 13.5, ratably among the Banks in accordance with the
aggregate amount of such payments owed to each such Bank; third, to the
payment of fees due and payable under subsections 5.2(a) and (b), ratably
among the Banks in accordance with their Commitment Percentages; fourth, to
the payment of interest then due and payable on the Loans, ratably among the
Banks in accordance with the aggregate amount of interest owed to each such
Bank; and fifth, to the payment of the principal amount of the Loans which is
then due and payable, ratably among the Banks in accordance with the aggregate
principal amount owed to each such Bank.
(c) After the Administrative Agent has received a Payment
Sharing Notice which remains in effect, all payments received by the
Administrative Agent under this Agreement or any Note shall be distributed and
applied by the Administrative Agent and the Banks in the following order:
first, to the payment of all amounts described in clauses first through third
of the
27
foregoing paragraph (b), in the order set forth therein; and second, to the
payment of the interest accrued on and the principal amount of all of the
Loans, regardless of whether any such amount is then due and payable, ratably
among the Banks in accordance with the aggregate accrued interest plus the
aggregate principal amount owed to such Bank.
(d) All payments (including prepayments) to be made by any
Borrower hereunder and under the Notes, whether on account of principal,
interest, fees or otherwise, shall be made without set-off or counterclaim and
shall be made prior to 3:00 P.M., New York City time, on the due date thereof
(i) in the case of fees and Loans other than Bilateral Option Loans, to the
Administrative Agent, for the account of the Banks, at the Administrative
Agent's office specified in subsection 13.2, and (ii) in the case of Bilateral
Option Loans made by any Bank, to such Bank, at the Bank's office specified in
Schedule I (or, with respect to Alternative Currency Bilateral Loans, if
different, at such other office of the Bank that it shall designate), in each
case in Dollars (or, with respect to Alternative Currency Bilateral Loans, in
the relevant Alternative Currency) and in immediately available funds. If any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day (unless,
with respect to any payment on a Eurodollar Loan, 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), and,
with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension.
(e) Unless the Administrative Agent shall have been notified
in writing by the Bank prior to a Borrowing Date that such Bank will not make
the amount of any Loan it has committed to make on such date available to the
Administrative Agent, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on such Borrowing Date,
and the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. If such amount is
made available to the Administrative Agent on a date after such Borrowing
Date, such Bank shall pay to the Administrative Agent on demand an amount
equal to the product of (i) the daily average Federal Funds Effective Rate
during such period, times (ii) the amount of the Loan such Bank was committed
to make, times (iii) a fraction the numerator of which is the number of days
that elapse from and including such Borrowing Date to the date on which such
Bank's Loan shall have become immediately available to the Administrative
Agent and the denominator of which is 360. A certificate of the Administrative
Agent submitted to any Bank with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error. If such
Bank's Commitment Percentage of such borrowing is not in fact made available
to the Administrative Agent by such Bank within three Business Days of such
Borrowing Date, the Administrative Agent
28
shall be entitled to recover such amount with interest thereon at the rate per
annum applicable to ABR Loans hereunder, on demand, from such Borrower.
5.10 Illegality. Notwithstanding any other provision herein,
if any change after the date hereof in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Bank to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Bank hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Bank'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 of such Loan shall
pay to such Bank such amounts, if any, as may be required pursuant to
subsection 5.13.
5.11 Requirements of Law. (a) In the event that any change
after the date hereof in any Requirement of Law or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such
Bank in respect thereof (except for taxes covered by subsection 5.12
and changes in taxes based upon or measured by income of such Bank);
(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 Bank which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank,
by an amount which such Bank deems in its reasonable judgment to be material,
of making, converting into, continuing or maintaining Eurodollar Loans or to
reduce any amount receivable hereunder in respect thereof then, in any such
case, the Company shall promptly pay such Bank, upon its demand, any
additional amounts necessary to compensate such Bank for such increased cost
or reduced amount receivable. If any Bank becomes entitled to claim any
additional amounts pursuant to this
29
subsection, it shall promptly notify the Company, through 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
setting forth the calculation thereof in reasonable detail (as determined by
such Bank in its reasonable discretion) submitted by such Bank, through the
Administrative Agent, to the Company shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Notes and all other amounts payable hereunder.
(b) In the event that any Bank shall have determined that
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Bank or any
corporation controlling such Bank 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 does or shall have
the effect of reducing the rate of return on such Bank's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Bank or such corporation could have achieved but for such change or
compliance (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Bank to
be material, then from time to time, after submission by such Bank to the
Company (with a copy to the Administrative Agent) of a written request
therefor, the Company shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such reduction. A certificate as to any
additional amount payable pursuant to this subsection setting forth the
calculation thereof in reasonable detail (as determined by such Bank in its
reasonable discretion) through the Administrative Agent, to the Company shall
be conclusive in the absence of manifest error.
(c) Upon request by any Bank, through the Administrative
Agent, from time to time, the Borrowers shall pay the cost of all Eurocurrency
Reserve Requirements applicable to the Eurodollar Loans made by such Bank. If
a Bank is or becomes entitled to receive payments in respect of Eurocurrency
Reserve Requirements, pursuant to this subsection 5.11(c), it shall promptly
notify the Borrowers thereof through the Administrative Agent. A certificate
as to the amount of such Eurocurrency Reserve Requirements setting forth the
calculation thereof in reasonable detail (as determined by such Bank in its
reasonable discretion) submitted by such Bank, through the Administrative
Agent, to the Borrowers shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.
5.12 Taxes. (a) All payments made by any 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,
30
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding, in the case of the Administrative Agent and each Bank,
net income taxes and franchise taxes (imposed in lieu of net income taxes)
that would not have been imposed on the Administrative Agent or such Bank, as
the case may be, in the absence of a present or former connection between the
jurisdiction of the government or taxing authority imposing such tax and the
Administrative Agent or such Bank (other than a connection arising solely from
the Administrative Agent or such Bank having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or
any Notes) or any political subdivision or taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions and withholdings being hereinafter called "Taxes"). If any Taxes
are required to be withheld from any amounts payable to the Administrative
Agent or any Bank hereunder or under any Notes, the amounts so payable to the
Administrative Agent or such Bank shall be increased to the extent necessary
to yield to the Administrative Agent or such Bank (after payment of all Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement and the Notes. Whenever any Taxes are
payable by any Borrower in respect of any payment made hereunder, as promptly
as possible thereafter any Borrower shall send to the Administrative Agent for
its own account or for the account of such Bank, as the case may be, a
certified copy of an original official receipt received by such Borrower
showing payment thereof. If such Borrower fails to pay any Taxes when due to
the appropriate taxing authority or fails to remit to the Administrative Agent
the required receipts or other required documentary evidence, such Borrower
shall indemnify the Administrative Agent and the Banks for any incremental
taxes, interest or penalties that may become payable by the Administrative
Agent or any Bank as a result of any such failure. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Notes and all other amounts payable hereunder.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to the
Company and the Administrative Agent (i) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 or successor applicable
form, as the case may be, and (ii) an Internal Revenue Service Form W-8 or W-9
or successor applicable form. Each such Bank also agrees to deliver to the
Company and the Administrative Agent two further copies of the said Form 1001
or 4224 and Form W-8 or W-9, or successor applicable forms or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Company, and
such extensions or renewals thereof as may reasonably be requested by the
Company or the Administrative Agent, unless in any such case an event
(including, without
31
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 Bank from duly completing
and delivering any such form with respect to it and such Bank so advises the
Company and the Administrative Agent. Such Bank 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.
5.13 Indemnity. Each Borrower agrees to indemnify each Bank
and to hold each Bank harmless from any loss or expense which such Bank may
sustain or incur as a consequence of (a) default by any Borrower in payment
when due of the principal amount of or interest on any Eurodollar Loan, (b)
default by any Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after such Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (c)
default by any Borrower in making any prepayment after such Borrower has given
a notice thereof in accordance with the provisions of this Agreement or (d)
the making of a payment or prepayment of Eurodollar Loans on a day which is
not the last day of an Interest Period with respect thereto, including,
without limitation, in each case, any such loss or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained. This covenant shall survive the
termination of this Agreement and the payment of the Loans or Notes, if any,
and all other amounts payable hereunder.
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement, each of
the Company and the Parent represents and warrants to the Administrative Agent
and each Bank that:
6.1 Corporate Existence; Compliance with Law. Each Loan
Party (a) is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, (b) is duly
qualified and in good standing in each jurisdiction wherein, in the opinion of
the Company and the Parent, the conduct of its business or the ownership of
its properties requires such qualification and (c) is in compliance with all
Requirements of Law, except to the extent that the failure to comply with
paragraph (a), (b) or (c) of this subsection would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.2 Corporate Power, Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority to make, deliver and
perform its obligations under the Loan Documents to which it is or will be a
party, and has taken
32
all necessary corporate action to authorize (i) in the case of the Borrowers,
the borrowings under this Agreement and any Notes to which it is or will be a
party on the terms and conditions hereof and thereof and (ii) the execution,
delivery and performance of this Agreement and the Loan Documents to which it
is or will be a party. This Agreement has been, and any Note and the other
Loan Documents to which it is or will be a party will be, duly executed and
delivered on behalf of each relevant Loan Party. This Agreement constitutes,
and each of the Notes, if any, and the other Loan Documents when executed and
delivered will constitute, a legal, valid and binding obligation of the Loan
Party thereto, enforceable against such Loan Party in accordance with its
terms, such enforceability subject to limitations under any applicable
bankruptcy, insolvency, moratorium or other laws affecting creditors' rights
and by general equitable principles (whether applied in a proceeding in equity
or at law). No consent of any other party (including stockholders of the
Parent) and no consent, license, approval or authorization of, or registration
or declaration with, any Governmental Authority is required to be obtained by
any Loan Party in connection with the execution, delivery, performance,
validity or enforceability of this Agreement and any Notes.
6.3 No Legal Bar. The execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents, the borrowings
hereunder and the use of the proceeds thereof, will not violate or contravene
any material provision of any Requirement of Law or material Contractual
Obligation of the Parent, the Company or any of its Subsidiaries and will not
result in, or require, the creation or imposition of any material Lien (other
than Liens permitted under subsection 9.2) on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation.
6.4 No Material Litigation. There is no legal action,
administrative proceeding or arbitration (whether or not purportedly on behalf
of the Parent or the Company or any of its Subsidiaries) presently pending, or
to the knowledge of the Parent or the Company threatened, against or affecting
the Parent or the Company or any of its Subsidiaries which would reasonably be
expected to have a Material Adverse Effect, except that the foregoing is
subject to the fact that the Parent and the Company cannot predict at this
time the results and impact, if any, of (i) those investigations and
litigations referred to in Item 3 of the Parent's Annual Report on Form 10-K
for the fiscal year ended December 31, 1996 referred to in subsection 6.6 to
the extent that inability to make such a prediction or determine liability is
stated in Item 3 and (ii) the governmental investigation and related matters
described in Note 6 to the Consolidated Financial Statements referred to in
Item 3.
6.5 Ownership of Properties. Each of the Parent, the Company
and each of its Subsidiaries is the tenant under valid leases or has good
title to substantially all its properties and assets, real and personal
(except defects in title and other
33
matters that would not reasonably be expected to have a Material Adverse
Effect), subject to no Lien except as permitted to exist under subsection 9.2.
6.6 Financial Condition. The consolidated balance sheet of
the Parent and its Subsidiaries as at December 31, 1996 and the related
consolidated statements of operations, shareholders' equity and of cash flows
(together with the related notes), included or incorporated in the Parent's
Annual Report on Form 10-K filed with the SEC for the fiscal year ended
December 31, 1996, present fairly in all material respects the financial
position of the Parent and its Subsidiaries as at such dates and the results
of their operations and their cash flows for the fiscal years then ended. The
unaudited consolidated balance sheet of the Parent and its Subsidiaries as at
March 31, 1997 and the related unaudited consolidated statement of operations
for the three-month interim period, and the related unaudited consolidated
statement of cash flows for the three-month interim period, ended on such
date, included in the Parent's Quarterly Report on Form 10-Q filed with the
SEC for such period, present fairly in all material respects the financial
position of the Parent and its Subsidiaries as at such date and the results of
their operations and their cash flows for the three-month period then ended.
All of such financial statements, including the notes to such financial
statements, have been prepared in conformity with GAAP (subject, in the case
of interim statements, to normal year-end adjustments and to the fact that
such financial statements may be abbreviated and may omit footnotes or contain
incomplete footnotes) consistently applied throughout the periods involved
except as stated therein.
6.7 Disclosure of Contingent Liabilities. To the best of the
knowledge and belief of the Parent, neither the Parent nor any of its
Subsidiaries has any contingent obligation, liability for taxes, long-term
leases, unusual forward or other liabilities, which are material in amount in
relation to the consolidated financial condition of the Parent and its
Subsidiaries taken as a whole and which are not disclosed in the financial
statements (including the related notes) described in subsection 6.6 above.
6.8 ERISA. Each Plan that is intended to qualify under
Section 401(a) of the Code satisfies in all material respects the applicable
requirements for qualification under that Code Section. No Reportable Event
has occurred and is continuing with respect to any such Plan, and neither the
Parent nor any of its Subsidiaries has incurred any liability to the PBGC
under Section 4062 of ERISA with respect to any such Plan that would
reasonably be expected to have a Material Adverse Effect.
6.9 Certain Federal Regulations. Neither the Company nor any
of its Subsidiaries is engaged in or will engage in the business of extending
credit for the purposes of "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation U
of the Board, and no
34
part of the proceeds of any Loan will be used for any purpose which violates,
or which would be inconsistent with, the provisions of Regulation U or X of
the Board.
6.10 No Default. Neither the Parent nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which would reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
6.11 Taxes. (a) Each of the Parent and its Subsidiaries has
filed or caused to be filed all tax returns which, to the knowledge of the
Parent, 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 adequate reserves to the extent required
in conformity with GAAP, have been provided on the books of the Parent or its
Subsidiaries, as the case may be) except insofar as the failure to make such
filings or payments would not reasonably be expected to have a Material
Adverse Effect; and (b) no tax Lien (other than a Lien permitted under
subsection 9.2(a)) has been filed, and, to the knowledge of the Parent, no
claim is being asserted, with respect to any such tax, fee or other charge
which would reasonably be expected to have a Material Adverse Effect.
6.12 Investment Company Act; Other Regulations. None of the
Parent, the Company or any of its Subsidiaries is an "investment company", or
a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended. None of the Parent, the Company or
any other Borrower is subject to regulation under any Federal or State statute
or regulation which limits its ability to incur Indebtedness.
6.13 Purpose of Loans. The proceeds of the Loans shall be
used by the Borrowers for general corporate purposes (which may include
purchases by the Parent of its capital stock).
6.14 Environmental Matters. To the best of the knowledge of
the Parent, the operations of the Parent and its Subsidiaries and all parcels
of real estate owned or operated by the Parent or its Subsidiaries are in
compliance with all Environmental Laws, except where the failure to so comply
would not reasonably be expected to have a Material Adverse Effect.
6.15 Principal Subsidiaries. Set forth on Schedule II
are all of the Principal Subsidiaries as of the date hereof.
35
SECTION 7. CONDITIONS PRECEDENT
7.1 Conditions to Effectiveness. The parties hereto
acknowledge that the effectiveness of this Agreement is subject to the
satisfaction of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of each of the Loan Parties, with a counterpart
for each Bank, (ii) for the account of each Bank so requesting, a
Revolving Credit Note and a Bid Loan Note conforming to the
requirements hereof and executed by a duly authorized officer of the
Borrowers and (iii) an incumbency certificate of each of the Loan
Parties which covers such officers.
(b) Corporate Proceedings. The Administrative Agent shall
have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of each of the Loan Parties
authorizing (i) the execution, delivery and performance of the Loan
Documents to which it is or will be a party and (ii) the borrowings
contemplated hereunder (in the case of each Borrower), certified by
the Secretary or an Assistant Secretary of such Loan Party as of the
Closing Date, which certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or
rescinded and shall be in form and substance satisfactory to the
Administrative Agent.
(c) Existing Credit Agreement. All commitments of the
lenders under the Existing Credit Agreement shall have been
terminated, all outstanding loans thereunder shall have been repaid
in full, all unpaid fees thereunder shall have been paid in full and
such agreement shall have been terminated.
(d) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Bank, the following executed
legal opinions:
(i) the executed legal opinion of counsel to
the Company and the Parent who may be the General Counsel of
the Company, substantially in the form of Exhibit F-1;
(ii) to the extent required pursuant to
subsection 13.15(a)(ii), the executed legal opinion of
counsel to any other Borrower, in form and substance
reasonably satisfactory to the Administrative Agent; and
(iii) the executed legal opinion of Simpson
Thacher & Bartlett, counsel to the Administrative Agent,
substantially in the form of Exhibit F-2.
36
Each such legal opinion shall cover such other matters incident to
the transactions contemplated by this Agreement as the Administrative
Agent may reasonably require.
(e) Officer's Certificate. The Administrative Agent shall
have received, with a counterpart for each Bank, a certificate
respecting accuracy of representations and warranties, the absence of
events having a Material Adverse Effect and the absence of Defaults
and Events of Default, substantially in the form of Exhibit G hereto,
signed by a Responsible Officer on behalf of each of the Company and
the Parent.
(f) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent, and
the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the
transactions contemplated hereby or thereby as it shall reasonably
request.
7.2 Conditions to Each Loan. The agreement of each Bank to
make any Loan requested to be made by it on any date is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by each of the Loan Parties in or
pursuant to subsections 6.1, 6.2, 6.3, 6.5, 6.9, 6.10, 6.11, 6.12 and
6.13 of this Agreement and in or pursuant to any other Loan Document
to which it is or will be a party, 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 the representation and warranty made pursuant to subsection
6.6 shall be true and correct in all material respects with respect
to the financial statements most recently delivered pursuant to
subsection 8.1, mutatis mutandis, as if such financial statements
delivered pursuant to subsection 8.1 were the financial statements
referred to in subsection 6.6.
(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 Borrowers hereunder shall constitute a representation
and warranty by the Loan Parties as of the date of such Loan that the
conditions contained in this subsection 7.2 have been satisfied.
37
SECTION 8. AFFIRMATIVE COVENANTS
Each of the Company and the Parent hereby agrees that, so
long as the Commitments remain in effect, any Note remains outstanding and
unpaid or any other amount is owing to any Bank or the Administrative Agent
hereunder, each of the Company and the Parent shall and the Company (except in
the case of delivery of financial information, reports and notices) shall
cause each of its Principal Subsidiaries to:
8.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within 120 days
after the end of each fiscal year of the Parent, a copy of the
consolidated balance sheet of the Parent and its Subsidiaries as at
the end of such year and the related consolidated statements of
operations, shareholders' equity and cash flows for such year (as
included or incorporated by reference in the Parent's Annual Report
on Form 10-K or successor form filed with the SEC for each such
fiscal 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 Price Waterhouse or other independent
certified public accountants of nationally recognized standing not
unacceptable to the Majority Banks; and
(b) as soon as available, but in any event not later than 75
days after the end of each of the first three quarterly periods of
each fiscal year of the Parent, the unaudited consolidated balance
sheet of the Parent and its Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of
operations for such quarter and the related unaudited consolidated
statements of operations and cash flows for the portion of the fiscal
year through the end of such quarter (as included in the Parent's
Quarterly Report on Form 10-Q or successor form filed with the SEC
for each such period), 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 when considered in
relation to the consolidated financial statements of the Parent and
its Subsidiaries.
All such financial statements shall be prepared in conformity with GAAP
(subject, in the case of interim statements, to normal year-end adjustments
and to the fact that such financial statements may be abbreviated and may omit
footnotes or contain incomplete footnotes) applied consistently throughout the
periods reflected therein and with prior periods (except as disclosed
therein).
8.2 Certificates; Other Information. Furnish to each Bank:
38
(a) concurrently with the delivery of the financial
statements referred to in subsection 8.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except
as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 8.1(a) and 8.1(b), a
certificate of a Responsible Officer of the Parent in his capacity as
such officer stating that, to the best of such Officer's knowledge,
each of the Borrowers and the Parent during such period has observed
or performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and in the Notes and the
other Loan Documents to which it is a party to be observed, performed
or satisfied by it, and that such Officer has obtained no knowledge
of any Default or Event of Default except as specified in such
certificate and showing in detail the calculation of compliance with
subsections 9.1 and 9.2;
(c) concurrently with the delivery of the financial
statements referred to in subsection 8.1(a), a list of the Principal
Subsidiaries as of the corresponding fiscal year end, certified by a
Responsible Officer in his capacity as such officer;
(d) within ten Business Days after the same are sent, copies
of all financial statements and reports which the Parent sends to its
shareholders generally relating to the business of the Parent and its
Subsidiaries, and within ten Business Days after the same are filed,
copies of all reports on Forms 10-K, 10-Q, 8-K, 8 and 10, and
Schedules 13D, 13E-3, 13E-4, 13-G, 14D-1 and 14D-9, or successor
forms or schedules, and the final prospectus in each effective
registration statement (other than registration statements on Form
S-8) and each post-effective amendment to such registration statement
which the Parent may make to, or file with, the SEC; and
(e) promptly, subject to reasonable confidentiality
requirements agreed to by the Company and such Bank, such additional
financial and other information as any Bank may from time to time
reasonably request.
8.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case
may be, all its obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves, to the extent required in conformity with GAAP with
respect thereto, have been provided on the books of the Parent or its
Subsidiaries, as the case may be, and except to the extent
39
that the failure to so pay, discharge or otherwise satisfy such obligations
would not result in a Default or Event of Default under Section 10(e)(i).
8.4 Conduct of Business and Maintenance of Existence.
Preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all corporate rights, privileges and
franchises necessary or desirable in the normal conduct of its business,
except as otherwise permitted pursuant to subsection 9.3; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
8.5 Insurance. Maintain with financially sound and reputable
insurance companies (which may include, without limitation, captive insurers),
such insurance coverage as is reasonable for the business activities of the
Parent and its Subsidiaries; and furnish to the Administrative Agent, upon
written request, such information as the Administrative Agent may reasonably
request as to its insurance program.
8.6 Inspection of Property, Books and Records; Discussions.
Permit representatives of any Bank (subject to reasonable safety and
confidentiality requirements) 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 Parent and its
Subsidiaries with officers and employees of the Parent and its Subsidiaries
and, provided representatives of the Parent are given an opportunity to
participate, with its independent certified public accountants.
8.7 Notices. Promptly give notice to the Administrative
Agent and each Bank 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 Parent or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any
time between the Parent or any of its Subsidiaries and any
Governmental Authority, which in either case, would reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Parent or any
of its Subsidiaries in which the then reasonably anticipated exposure
of the Parent and its Subsidiaries is $10,000,000 or more and not
covered by insurance, or in which injunctive or similar relief is
sought which is then reasonably anticipated to have an adverse
economic effect on the Parent and its Subsidiaries of $10,000,000 or
more;
40
(d) the following events, as soon as possible and in any
event within 30 days after the Company or the Parent knows or has
reason to know thereof: (i) the occurrence or expected occurrence of
any Reportable Event with respect to any 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 Company or the Parent
or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the terminating, Reorganization or
Insolvency of, any Plan, where in connection with any of the events
described in (i) or (ii) above the liability to the Company or a
Commonly Controlled Entity would reasonably be expected to be
$10,000,000 or more;
(e) any upgrading, downgrading or cessation in the rating of
the long term senior unenhanced, unsecured debt of the Company by the
rating agency or agencies whose rating on such debt is then being
used to determine the Applicable Margin and the Facility Fee Rate;
and
(f) a development or event which would reasonably be
expected to have a Material Adverse Effect.
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 each of the Company and the Parent proposes to
take with respect thereto.
8.8 Environmental Laws.
(a) Comply with all Environmental Laws and obtain and comply
with and maintain any and all licenses, approvals, registrations or permits
required by Environmental Laws, except to the extent that failure to do so
would not be reasonably expected to have a Material Adverse Effect; and
(b) Defend, indemnify and hold harmless the Administrative
Agent and the Banks, and their respective employees, agents, officers and
directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of or noncompliance with any Environmental Laws
applicable to the real property owned or operated by the Company, the Parent
or any of the Company's Subsidiaries, or any orders, requirements or demands
of Governmental Authorities related thereto, including, without limitation,
attorney's and consultant's fees, investigation and laboratory fees, court
costs and litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party seeking
indemnification therefor.
41
SECTION 9. NEGATIVE COVENANTS
The Parent hereby agrees that, so long as the Commitments
remain in effect, any Note remains outstanding and unpaid or any other amount
is owing to any Bank or the Administrative Agent hereunder, it shall not, and
(except with respect to subsections 9.1 and 9.5(b)) shall not permit any of
its Subsidiaries to, directly or indirectly:
9.1 Financial Condition Covenants.
(a) Consolidated Debt to EBITDA. Permit on the last day of
any fiscal quarter of the Company commencing with June 30, 1997, the ratio of
Consolidated Debt as at the end of such fiscal quarter to EBITDA for the
period of four consecutive fiscal quarters then ended to be greater than 3.5
to 1.0.
(b) Interest Coverage. Permit for any period of four
consecutive fiscal quarters ending on the last day of any fiscal quarter of
the Company commencing with June 30, 1997, the ratio of EBIT for such four
fiscal quarter period to Consolidated Interest Expense for such four fiscal
quarter period to be less than 2.0 to 1.0.
9.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues (which property,
assets or revenues are or would be reflected from time to time on the
consolidated financial statements of the Parent and its Subsidiaries in
accordance with GAAP), whether now owned or hereafter acquired, except for:
(a) Liens for taxes or other governmental charges 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 Parent or its Subsidiaries, as the
case may be, to the extent required in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, vendors', landlords', brokers', bankers' and other like
Liens arising in the ordinary course of business relating to
obligations which are not overdue for a period of more than 60 days
or which are being contested in good faith and Liens arising out of
judgments or awards that are either discharged within 60 days after
entry or execution of which has been stayed pending the outcome of
appeal or review 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;
42
(d) pledges, deposits and similar arrangements in connection
with or to secure performance of bids, tenders, leases and other
deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business and contractual
rights of other Persons to make set-offs and to require security in
connection with letters of credit, currency, commodity and interest
rate contracts, surety bonds, leases, banking and brokerage
agreements and other transactions in the ordinary course of business;
(e) leases, easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business
which would not reasonably be expected to have a Material Adverse
Effect;
(f) Liens on the property, assets or revenues of a Person
which becomes a Subsidiary after the date hereof, to the extent that
(i) such Liens existed at the time such Person became a Subsidiary
and were not created in anticipation thereof, (ii) any such Lien is
not extended to cover any property, assets or revenues of such Person
after the time such Person becomes a Subsidiary, and (iii) the amount
of Indebtedness secured thereby is not thereafter increased;
(g) Liens arising in connection with (i) industrial
development, pollution control or other tax exempt financing
transactions, provided that such Liens do not at any time encumber
any property other than the property financed by such transaction and
other property, assets or revenues related to the property so
financed on which Liens are customarily granted in connection with
such transactions, or (ii) conveyances of any production payment or
other obligation to make a production payment (A) which is to be made
solely from production from oil, gas or other underground mineral
properties dedicated thereto or (B) as to which production payment
amount the obligee's sole recourse is to such properties;
(h) Liens (including, without limitation, Liens incurred in
connection with Capitalized Leases, operating leases and
sale-leaseback transactions) securing Indebtedness of the Parent and
its Subsidiaries incurred to finance the acquisition of fixed or
capital assets, and refinancings thereof, provided that (i) such
Liens do not at any time encumber any property other than the
property financed by such Indebtedness and other property, assets or
revenues related to the property so financed on which Liens are
customarily granted in connection with such financings or
refinancings, and (ii) the principal amount of Indebtedness secured
by any such Lien shall at no time exceed 100% of the greater of the
original purchase price of
43
such property at the time it was acquired and the fair market value
of such property as reasonably determined by a Responsible Officer of
the Company in good faith thereafter, plus fees and other costs
related to the financing or refinancing thereof which have been
agreed upon in an arm's length manner;
(i) Liens incurred in connection with accounts
receivable sale transactions entered into by the Parent or
its Subsidiaries;
(j) Liens securing Contractual Obligations of any
Subsidiary to the Parent, the Company or any Domestic
Subsidiary;
(k) Liens on the property, assets or revenues of any
Foreign Subsidiary or any Excluded Subsidiary; and
(l) Liens (not otherwise permitted hereunder) which secure
obligations in an aggregate amount at any time outstanding not
exceeding an amount equal to 5% of the amount recorded opposite the
caption "Properties and equipment, net" (or the equivalent caption)
on the consolidated balance sheet of the Parent and its Subsidiaries
most recently delivered to the Administrative Agent pursuant to
subsection 8.1.
9.3 Limitation on Fundamental Changes. Convey, sell, lease,
assign, transfer or otherwise dispose of (including by merger, consolidation,
sale of stock, liquidation or dissolution) all or substantially all of the
property, assets or business of the Parent and its Subsidiaries taken as a
whole.
9.4 Limitation on Asset Transfers to Foreign Subsidiaries.
With respect to the Parent or any Domestic Subsidiary, convey, sell, lease,
assign, transfer or otherwise dispose of (collectively, a "transfer") any of
its property, business or assets (including, without limitation leasehold
interests), whether now owned or hereafter acquired, to any Foreign
Subsidiary, except such transfers which, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
9.5 Limitation on Subordinated Debt. Permit any Subsidiary
of the Parent (other than the Company) to create, incur, assume or suffer to
exist any subordinated indebtedness other than (a) subordinated indebtedness
of a Person which becomes a Subsidiary after the date hereof to the extent
such indebtedness existed at the time such Person became a Subsidiary and was
not incurred in anticipation thereof and any refinancings of such indebtedness
after such time so long as the principal amount thereof is not increased or
(b) subordinated indebtedness of such Subsidiary held by the Parent or any
other Subsidiary of the Parent.
44
SECTION 10. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) Any Borrower shall fail to pay any principal of any Loan
or Note when due in accordance with the terms thereof or hereof; or
any Borrower shall fail to pay any interest on any Loan or Note, or
any other amount payable hereunder, within five Business Days after
any such interest or other amount becomes due in accordance with the
terms thereof or hereof; or
(b) Any representation or warranty made, or pursuant to
subsection 7.2, deemed made, by any Loan Party herein or in any other
Loan Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect in
any material adverse respect on or as of the date made or deemed
made; or
(c) The Parent or any Subsidiary shall default in the
observance or performance of any agreement contained in subsection
9.1, 9.3, 9.4 or 9.5; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement (other
than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days; or
(e) The Parent or any of its Subsidiaries (other than the
Excluded Subsidiaries) shall (i) default in any payment of principal
of or interest on, or any other amount payable with respect to, any
(A) Domestic Indebtedness (other than the Notes and Loans) in an
aggregate principal amount for all such Domestic Indebtedness of
$10,000,000 or more, or (B) Foreign Subsidiary Indebtedness (other
than the Notes and Loans) in an aggregate principal amount for all
such Foreign Subsidiary Indebtedness of $20,000,000 or more, beyond
the period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(ii) default in the observance or performance of any other agreement
relating to any such Indebtedness in the amounts specified in clause
(i) above or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist in any case which continues uncured or unwaived (and,
if waived, without any change in the material terms of such
Indebtedness) after the expiration of all applicable grace periods,
the effect of which default or other event or condition is to cause,
or to permit the holder or holders of such Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause, with
45
the giving of notice if required, such Indebtedness to become due
prior to its stated maturity; or
(f) (i) The Parent or any Principal Subsidiary (other than
the Excluded 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 or other similar
official for it or for all or any substantial part of its assets, or
the Parent or any such Principal Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Parent or any such Principal Subsidiary 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 Parent or any such Principal
Subsidiary 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 Parent or any such Principal
Subsidiary 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 Parent or any
such Principal Subsidiary shall generally not, or shall be unable to,
or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) Any Person shall engage in any non-exempt
"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, (iii) a Reportable
Event shall occur with respect to, or judicial 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 judicial proceedings or
appointment of a trustee is, in the reasonable opinion of the
Majority Banks, 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 Company or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Majority Banks is
46
likely to, 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 subject the Company or any of
its Subsidiaries to any tax, penalty or other liabilities which in
the aggregate would have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against the Parent or any of its Subsidiaries in aggregate amounts
(not paid or fully covered by insurance) of $10,000,000 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
(i) The Parent shall cease to own directly or indirectly of
record and beneficially free and clear of Liens at least 75% of the
shares of the issued and outstanding capital stock of the Company;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i), (ii) or (iii) of paragraph (f) above with respect to
any of the Borrowers, automatically the Commitments to such Borrower shall
immediately terminate and the Loans made to such Borrower hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and
the Notes of such Borrower 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 Banks, the
Administrative Agent may, or upon the request of the Majority Banks, the
Administrative Agent shall, by notice to the Company declare the Commitments
of any or all of the Borrowers to be terminated forthwith, whereupon such
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Banks, the Administrative Agent may, or upon the request of the
Majority Banks, the Administrative Agent shall, by notice of default to the
Company and the Parent, declare the Loans hereunder made to any or all of the
Borrowers (with accrued interest thereon) and all other amounts owing by such
Borrower under this Agreement and the Notes of such Borrower 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.
47
SECTION 11. THE ADMINISTRATIVE AGENT
11.1 Appointment. Each Bank hereby irrevocably designates
and appoints Chase as the Administrative Agent of such Bank under this
Agreement and the other Loan Documents, and each such Bank irrevocably
authorizes Chase, as the Administrative Agent for such Bank, 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 Bank, 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.
11.2 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.
11.3 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 Banks
for any recitals, statements, representations or warranties made by any Loan
Party 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 the Notes or any other Loan Document or for any failure of any
Loan Party to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Bank 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 any Loan Party.
48
11.4 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, cablegram, telegram, telecopy, 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 Company, the
Parent or any other 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 Banks as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and
the Notes and the other Loan Documents in accordance with a request of the
Majority Banks, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks and all future holders of
the Notes.
11.5 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 Bank or any Loan Party 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 Banks. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Majority Banks;
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 Banks.
11.6 Non-Reliance on Administrative Agent and Other Banks.
Each Bank 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 Loan Parties, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Bank. Each Bank represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative
49
Agent or any other Bank, 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 Loan Parties and made its own decision to make its
Loans hereunder and enter into this Agreement. Each Bank also represents that
it will, independently and without reliance upon the Administrative Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit 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 Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Banks by
the Administrative Agent hereunder, the Administrative Agent shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Loan Parties
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
11.7 Indemnification. The Banks agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Loan Parties and without limiting the obligation of the Parent, the
Company and any other Borrower to do so), ratably according to the respective
amounts of their Commitments as in effect on the date on which the claim for
indemnity by the Administrative Agent is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Notes) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of 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 Bank shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct. The agreements
in this subsection shall survive the payment of the Notes and all other
amounts payable hereunder.
11.8 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 Parent, the Company
or any other Borrower as though the Administrative Agent were not the
Administrative Agent hereunder and under the other Loan Documents. With
respect to its Loans
50
made or renewed by it and any Note issued to it, the Administrative Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Bank and may exercise the same as though it were not the
Administrative Agent, and the terms "Bank" and "Banks" shall include the
Administrative Agent in its individual capacity.
11.9 Successor Administrative Agent. The Administrative
Agent may resign as Administrative Agent upon 10 days' notice to the Banks. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Majority Banks shall appoint
from among the Banks a successor agent for the Banks, which successor agent
shall be approved by the Company, whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon its
appointment, 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 Notes. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this subsection shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement and
the other Loan Documents.
SECTION 12. GUARANTEES
12.1 Parent Guarantee. The Parent hereby unconditionally and
irrevocably guarantees to the Administrative Agent and the Banks the prompt
and complete payment and performance by each of the Borrowers when due
(whether at the stated maturity, by acceleration or otherwise) of the
Obligations owing to the Administrative Agent and the Banks by such Borrowers.
This guarantee (the "Parent Guarantee") shall remain in full force and effect
until the Obligations of each of the Borrowers are indefeasibly paid in full,
notwithstanding that from time to time prior thereto any Borrower may be free
from any Obligations. The Parent agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any
Bank on account of its liability under this Parent Guarantee, it will notify
the Administrative Agent and such Bank in writing that such payment is made
under this Parent Guarantee for such purpose. No payment or payments made by
any Borrower or any other Person or received or collected by the
Administrative Agent or any Bank from any Borrower or any other Person by
virtue of any action or proceeding or any offset or appropriation or
application, at any time or from time to time, in reduction of or in payment
of the Obligations of such Borrower shall be deemed to modify, reduce, release
or otherwise affect the liability of the Parent under this Parent Guarantee,
which shall remain obligated under this Parent Guarantee,
51
notwithstanding any such payment or payments until the Obligations are paid in
full.
12.2 Company Guarantee. The Company hereby unconditionally
and irrevocably guarantees to the Administrative Agent and the Banks, the
prompt and complete payment and performance by each of the other Borrowers
when due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations owing to the Administrative Agent and the Banks by such Borrowers.
This guarantee (the "Company Guarantee") shall remain in full force and effect
until the Obligations of each such Borrower are indefeasibly paid in full,
notwithstanding that from time to time prior thereto any such Borrower may be
free from any Obligations. The Company agrees that whenever, at any time, or
from time to time, it shall make any payment to the Administrative Agent or
any Bank on account of its liability under this Company Guarantee, it will
notify the Administrative Agent and such Bank in writing that such payment is
made under this Company Guarantee for such purpose. No payment or payments
made by any such Borrower or any other Person or received or collected by the
Administrative Agent or any Bank from any such Borrower or any other Person by
virtue of any action or proceeding or any offset or appropriation or
application, at any time or from time to time, in reduction of or in payment
of the Obligations of such Borrowers shall be deemed to modify, reduce,
release or otherwise affect the liability of the Company under this Company
Guarantee, which shall remain obligated under this Company Guarantee,
notwithstanding any such payment or payments until the Obligations of such
Borrowers are paid in full.
12.3 No Subrogation, Contribution, Reimbursement or
Indemnity. Notwithstanding anything to the contrary in the Parent Guarantee
and the Company Guarantee (together, the "Guarantees", each a "Guarantee"),
the Parent and the Company (together, the "Guaranteeing Parties," each a
"Guaranteeing Party") hereby irrevocably waives all rights which may have
arisen in connection with its Guarantee to be subrogated to any of the rights
(whether contractual, under the Bankruptcy Code, including Section 509
thereof, under common law or otherwise) of the Administrative Agent or any
Bank against the Company or any other Borrowers (together, the "Guaranteed
Parties", each a "Guaranteed Party") for the payment of the Obligations. Each
Guaranteeing Party hereby further irrevocably waives all contractual, common
law, statutory or other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against any Guaranteed Party or
Parties or any other Person which may have arisen in connection with its
Guarantee. So long as the Obligations remain outstanding, if any amount shall
be paid by or on behalf of any Guaranteed Party to the Guaranteeing Party on
account of any of the rights waived in this subsection, such amount shall be
held by such Guaranteeing Party in trust, segregated from other funds of such
Guaranteeing Party, and shall, forthwith upon receipt by such Guaranteeing
Party, be turned over to the Administrative Agent in the exact form received
by such Guaranteeing Party (duly endorsed by such
52
Guaranteeing Party to the Administrative Agent, if required), to be applied
against the Obligations of such Guaranteed Party or Parties, whether matured
or unmatured, in such order as the Administrative Agent may determine. The
provisions of this subsection as they apply to each of the Guaranteeing
Parties shall survive the payment in full of the Obligations of its Guaranteed
Party or Parties.
12.4 Amendments, etc., with respect to the Obligations. Each
Guaranteeing Party shall remain obligated under its Guarantee notwithstanding
that, without any reservation of rights against such Guaranteeing Party, and
without notice to or further assent by such Guaranteeing Party, any demand for
payment of any of the Obligations made by the Administrative Agent or any Bank
may be rescinded by the Administrative Agent or such Bank, and any of the
Obligations continued, and the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or
any Bank, and this Agreement, the Notes and the other Loan Documents may be
amended, modified, supplemented or terminated, in whole or in part, as the
Administrative Agent or the Banks (or the Majority Banks, as the case may be)
may deem advisable from time to time in accordance with the provisions of
subsection 13.1(a), and any collateral security, guarantee or right of set-off
at any time held by the Administrative Agent or any Bank for the payment of
the Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Administrative Agent nor any Bank shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Obligations or for the obligations of any Guaranteeing Party under its
Guarantee or any property subject thereto.
12.5 Guarantee Absolute and Unconditional. Each Guaranteeing
Party waives any and all notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Bank upon its Guarantee or acceptance of its
Guarantee; the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred in reliance upon the Guarantees; and
all dealings between the Borrowers and the Parent, on the one hand, and the
Administrative Agent and the Banks, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon the
Guarantees. Each Guaranteeing Party waives diligence, presentment, protest,
notice of intent to accelerate, notice of acceleration, demand for payment and
notice of default or nonpayment to or upon any Guaranteed Party or such
Guaranteeing Party with respect to the Obligations. The Guarantees shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of this Agreement, any
Note, any other Loan Document, any of the Obligations or any collateral
53
security therefor or guarantee or right of set-off with respect thereto at any
time or from time to time held by the Administrative Agent or any Bank, (b)
any defense, offset or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by any of
the Guaranteed Parties against the Administrative Agent or any Bank or (c) any
other circumstance whatsoever (with or without notice to or knowledge of any
of the Guaranteed Parties or such Guaranteeing Party) which constitutes, or
might be construed to constitute, an equitable or legal discharge of any of
the Guaranteed Parties for the Obligations of such Guaranteed Party, or of
such Guaranteeing Party under its Guarantee, in bankruptcy or in any other
instance. When the Administrative Agent is pursuing its rights and remedies
hereunder against any Guaranteeing Party, the Administrative Agent or any Bank
may, but shall be under no obligation to, pursue such rights and remedies as
it may have against its Guaranteed Party or any other Person or against any
collateral security or guarantee for the Obligations or any right of offset
with respect thereto, and any failure by the Administrative Agent or any Bank
to pursue such other rights or remedies or to collect any payments from such
Guaranteed Party or such other Person or to realize upon any such collateral
security or guarantee or to exercise such right of offset or any release of
such Guaranteed Party or such other Person or of any such collateral security,
guarantee or right of offset, shall not relieve such Guaranteeing Party of any
liability under its Guarantee, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Administrative Agent and the Banks against such Guaranteeing Party.
12.6 Reinstatement. Each Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any of the Obligations of any Guaranteed Party thereunder
is rescinded or must otherwise be restored or returned by the Administrative
Agent or any Bank upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of such Guaranteed Party or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, such Guaranteed Party or any substantial part of any of its
property, or otherwise, all as though such payments had not been made.
12.7 Payments. Each Guaranteeing Party hereby agrees that
the Obligations will be paid to the Administrative Agent for the benefit of
the Administrative Agent and the Banks, as the case may be, without set-off or
counterclaim in Dollars or Alternative Currency, as appropriate, in
immediately available funds at the office of the Administrative Agent, c/o
Loan and Agency Services Group (Clearing Account No. 144810547) located at One
Chase Manhattan Plaza, 8th Floor, New York, New York 10081.
54
SECTION 13. MISCELLANEOUS
13.1 Amendments and Waivers; Replacement of Banks. (a)
Neither this Agreement, any Note, 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. With the written consent of
the Majority Banks, the Administrative Agent, the Parent and the Company may,
from time to time, enter into written amendments, supplements or modifications
hereto and to the Notes, if any, and the other Loan Documents for the purpose
of adding any provisions to this Agreement or the Notes, if any, or the other
Loan Documents or changing in any manner the rights of the Banks, the Parent
or of the Borrowers hereunder or thereunder or waiving, on such terms and
conditions as the Administrative Agent may specify in such instrument, any of
the requirements of this Agreement or the Notes, if any, 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 maturity of any Loan or Note or any
installment thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any fee payable to any Bank hereunder, or change
the amount of any Bank's Commitment, in each case without the consent of the
Bank affected thereby, (ii) amend, modify or waive any provision of this
subsection or reduce the percentage specified in the definition of Majority
Banks, or consent to the assignment or transfer by the Parent or any Borrower
of any of its rights and obligations under this Agreement and the other Loan
Documents, or amend, modify or waive any provision of Section 12, in each case
without the written consent of all the Banks, or (iii) amend, modify or waive
any provision of Section 11 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 Banks and shall be binding
upon the Parent, the Borrowers, the Banks, the Administrative Agent, all
future holders of the Notes, if any, and all future obligees under the Loans.
In the case of any waiver, the Parent, the Borrowers, the Banks and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Loans or Notes, if any, and any other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
(b) Notwithstanding anything to the contrary contained in
subsection 13.1(a), so long as no Default or Event of Default has occurred and
is continuing the Borrowers and the Parent shall be permitted in their
discretion (but, if any Revolving Credit Loans are then outstanding, with the
consent of the Majority Banks (which consent shall not be unreasonably
withheld)) to amend this Agreement to replace one or more Banks without the
consent of any Bank to be so replaced pursuant to this subsection 13.1(b) (a
"Replaced Bank") and to provide for (w) the
55
termination of the Commitments of such Replaced Bank, (x) the addition to this
Agreement of one or more other banking institutions, or an increase in the
Commitments of one or more of the other Banks (with the consent of such other
Banks), so that the total Commitments after giving effect to such amendment
shall be in the same amount as the total Commitments immediately before giving
effect to such amendment, (y) if any Loans are outstanding at the time of such
amendment, the making of such additional Loans by such new financial
institutions or other Bank or Banks, as the case may be, as may be necessary
to repay in full the outstanding Loans of such Replaced Bank together with
interest thereon and all accrued fees and indemnities with respect thereto
immediately before giving effect to such amendment and (z) such other
modifications to this Agreement as may be necessary to effect the replacement
of such Replaced Bank.
(c) Notwithstanding anything to the contrary contained in
paragraph (a) or (b) of this subsection 13.1, if as a result of a change in
the Requirement of Law after the date hereof any Borrower or the Parent has
become obligated to, or reasonably believes that it will become obligated to
pay to any Bank any increased amount pursuant to subsection 5.11, 5.12 or
5.13, and such Bank shall not have waived payment of such increased amounts,
then the Borrowers and the Parent may, if no Default or Event of Default has
occurred and is continuing and payment of any such increased amounts as have
become due has been made or appropriately provided for, upon five Business
Days' notice to the Administrative Agent and such Bank, amend this Agreement,
without the consent of any Bank or the Administrative Agent, to replace any
one or more of the Banks to which such increased amounts have become payable
or would become payable and to provide for the matters referred to in clauses
(w), (x), (y) and (z) of subsection 13.1(b), and such replaced Bank or Banks
shall be deemed to be Replaced Banks for purposes of such clauses.
13.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including
by telecopy), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made on receipt, addressed as follows in the case
of the Company, the Parent and the Administrative Agent, as set forth in
paragraph 5 of the Notice of Additional Borrower relating to any Borrower
other than the Company, in the case of such other Borrower, 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 and any
future holders of the Notes, if any, or any future obligees under the Loans:
The Company: W. R. Grace & Co.-Conn
One Town Center Road
Boca Raton, Florida 33486-1010
Attention: Treasurer
Telecopy: (561) 362-1944
Telephone: (561) 362-1949
56
The Parent: W. R. Grace & Co.
One Town Center Road
Boca Raton, Florida 33486-1010
Attention: Treasurer
Telecopy: (561) 362-1944
Telephone: (561) 362-1949
The
Administrative
Agent: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Robert Sacks
Telecopy: (212) 270-4118
Telephone: (212) 270-1355
With a copy
to: Loan and Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Margaret Swales
Telecopy: (212) 552-5662
Telephone: (212) 552-7472
13.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Bank, any right, remedy, power or privilege hereunder 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.
13.4 Survival of Representations and Warranties. All
representations and warranties made hereunder 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 Notes, if any.
13.5 Payment of Expenses and Taxes. The Company agrees (a)
to pay or reimburse the Administrative Agent for all its out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and any Notes 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 fees and disbursements of counsel to the Administrative Agent,
(b) to pay or reimburse each Bank and the Administrative Agent for all its
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, any Notes, the other Loan Documents and
any such other documents, including,
57
without limitation, fees and disbursements of counsel to the Administrative
Agent and to the several Banks, and (c) to pay, indemnify, and hold each Bank
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 transactional 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, any Notes, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and
hold each Bank 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 and performance by the Loan
Parties, and administration and enforcement by the Administrative Agent and
the Banks of this Agreement, any Notes and the other Loan Documents and any
such other documents (all the foregoing, collectively, the "indemnified
liabilities"), provided, that the Company shall have no obligation hereunder
to the Administrative Agent or any Bank with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of the
Administrative Agent or any such Bank, (ii) legal proceedings commenced
against the Administrative Agent or any such Bank by any security holder or
creditor thereof arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such, or (iii) legal
proceedings commenced against the Administrative Agent or any such Bank by any
other Bank or by any Transferee (as defined in subsection 13.6). The
agreements in this subsection shall survive repayment of the Loans or Notes,
if any, and all other amounts payable hereunder.
13.6 Successors and Assigns; Participations; Purchasing
Banks.
(a) This Agreement shall be binding upon and inure to the
benefit of the Parent, the Borrowers, the Banks, the Administrative Agent, all
future holders of the Notes, if any, all future obligees under the Loans and
their respective successors and assigns, except that neither the Parent nor
any Borrower may assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Bank.
(b) Any Bank 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 Bank, any Note held by such Bank, any Commitments of
such Bank or any other interest of such Bank hereunder and under the other
Loan Documents. In the event of any such sale by a Bank of participating
interests to a Participant, such Bank's obligations
58
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note, if any, and the
obligee under any such Loan for all purposes under this Agreement and the
other Loan Documents, and the Parent, the Borrowers and the Administrative
Agent shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement and the other
Loan Documents. The Parent and each of the Borrowers agrees that if amounts
outstanding under this Agreement and the Loans or the Notes, if any, 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 be deemed
to have the right of set-off in respect of its participating interest in
amounts owing under this Agreement and any Loan or Note to the same extent as
if the amount of its participating interest were owing directly to it as a
Bank under this Agreement or any Loan or Note, provided that such Participant
shall only be entitled to such right of set-off if it shall have agreed in the
agreement pursuant to which it shall have acquired its participating interest
to share with the Banks the proceeds thereof as provided in subsection 13.7.
The Parent and each of the Borrowers also agrees that each Participant shall
be entitled to the benefits of subsections 5.11, 5.12, 5.13 and 13.5 with
respect to its participation in the Commitments and the Loans outstanding from
time to time; provided, that no Participant shall be entitled to receive any
greater amount pursuant to such subsections than the transferor Bank would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Bank to such Participant had no such transfer
occurred.
(c) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to
any Bank or any affiliate thereof and, with the consent of the Company and
upon notice to the Administrative Agent, to one or more additional banks or
financial institutions ("Purchasing Banks") all or any part of its rights and
obligations under this Agreement and the Loans or the Notes, if any, pursuant
to a Commitment Transfer Supplement, substantially in the form of Exhibit H,
executed by such Purchasing Bank, such transferor Bank (and, in the case of a
Purchasing Bank that is not then a Bank or an affiliate thereof, by the
Company and the Administrative Agent) and delivered to the Administrative
Agent for its acceptance and recording in the Register. Upon such execution,
delivery, acceptance and recording, from and after the Transfer Effective Date
determined pursuant to such Commitment Transfer Supplement, (x) the Purchasing
Bank thereunder shall be a party hereto and, to the extent provided in such
Commitment Transfer Supplement, have the rights and obligations of a Bank
hereunder with a Commitment as set forth therein, and (y) the transferor Bank
thereunder shall, to the extent provided in such Commitment Transfer
Supplement, be released from its obligations under this Agreement (and, in the
case of a Commitment Transfer Supplement covering all or the remaining portion
of a transferor Bank's rights and obligations
59
under this Agreement, such transferor Bank shall cease to be a party hereto).
Such Commitment Transfer Supplement shall be deemed to amend this Agreement to
the extent, and only to the extent, necessary to reflect the addition of such
Purchasing Bank and the resulting adjustment of Commitment Percentages arising
from the purchase by such Purchasing Bank of all or a portion of the rights
and obligations of such transferor Bank under this Agreement and the Loan or
the Notes, if any. On or prior to the Transfer Effective Date determined
pursuant to such Commitment Transfer Supplement, the relevant Borrower, at its
own expense, if the Purchasing Bank so requests, shall execute and deliver to
the Administrative Agent in exchange for any surrendered Revolving Credit Note
and Bid Loan Note a new Revolving Credit Note and Bid Loan Note to the order
of such Purchasing Bank in an amount equal to the Commitment assumed by it
pursuant to such Commitment Transfer Supplement and, if the transferor Bank
has retained a Commitment hereunder, new Notes to the order of the transferor
Bank in an amount equal to the Commitment retained by it hereunder. Such new
Notes shall be dated the Closing Date and shall otherwise be in the form of
the Notes replaced thereby. Any Notes surrendered by the transferor Bank shall
be returned by the Administrative Agent to the Company marked "cancelled".
(d) The Administrative Agent shall maintain at its address
referred to in subsection 13.2 a copy of each Commitment Transfer Supplement
delivered to it and a register (the "Register") for the recordation of the
names and addresses of the Banks and the Commitment of, and principal amount
of the Loans owing to, each Bank from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Parent, the Borrowers, the Administrative Agent and the Banks may treat each
Person whose name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by the Parent, the Borrowers or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Bank and Purchasing Bank (and, in the case of a
Purchasing Bank that is not then a Bank or an affiliate thereof, by the
Company and the Administrative Agent) together with payment to the
Administrative Agent of a registration and processing fee of $3,500, the
Administrative Agent shall (i) promptly accept such Commitment Transfer
Supplement (ii) on the Transfer Effective Date determined pursuant thereto
record the information contained therein in the Register and give notice of
such acceptance and recordation to the Banks and the Company.
(f) The Parent and the Borrowers authorizes each Bank to
disclose to any Participant or Purchasing Bank (each, a "Transferee") and any
prospective Transferee any and all financial information in such Bank's
possession concerning such Borrower and its affiliates which has been
delivered to such Bank
60
by or on behalf of the Parent, the Company or such Borrower pursuant to this
Agreement or which has been delivered to such Bank by or on behalf of the
Parent, the Company or such Borrower in connection with such Bank's credit
evaluation of such Borrower and its affiliates prior to becoming a party to
this Agreement.
(g) If, pursuant to this subsection, any interest in this
Agreement or any Note is transferred to any Transferee which is organized
under the laws of any jurisdiction other than the United States or any state
thereof, the transferor Bank shall cause such Transferee, concurrently with
the effectiveness of such transfer, (i) to represent to the transferor Bank
(for the benefit of the transferor Bank, the Administrative Agent, the Parent
and the Borrowers) that under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent, the Parent, the Borrowers
or the transferor Bank with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the transferor Bank
(and, in the case of any Purchasing Bank registered in the Register, the
Administrative Agent, the Parent and the Company) either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such
Transferee claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder) and (iii) to agree (for
the benefit of the transferor Bank, the Administrative Agent, the Parent and
the Company) to provide the transferor Bank (and, in the case of any
Purchasing Bank registered in the Register, the Administrative Agent, the
Parent and the Company) a new Form 4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time
with all applicable U.S. laws and regulations with regard to such withholding
tax exemption.
(h) Nothing herein shall prohibit any Bank from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
13.7 Adjustments; Set-off.
(a) If any Bank (a "benefitted Bank") shall at any time
receive any payment of all or part of its Revolving Credit Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 10(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Bank, if any, in respect
of such other Bank's Revolving Credit Loans, or interest thereon, such
benefitted Bank shall purchase for cash from the other Banks such portion of
each such other Bank's Loan, or shall provide such other Banks with the
benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Bank to share the excess payment or
benefits of such collateral or proceeds ratably with each of the
61
Banks; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Bank, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. Each Borrower agrees that each
Bank so purchasing a portion of another Bank's Loan may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to
such portion as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks
provided by law, each Bank shall have the right, without prior notice to the
Parent and the Borrowers, any such notice being expressly waived by the Parent
and the Borrowers, to the extent permitted by applicable law, upon any amount
not being paid when due and payable by any Borrower hereunder or under the
Notes (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 Bank or any branch or agency thereof to or for
the credit or the account of the Parent or such Borrower. Each Bank agrees
promptly to notify the Parent, the Borrowers and the Administrative Agent
after any such set-off and application made by such Bank, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
13.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
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 Parent, the Company and the
Administrative Agent.
13.9 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.
13.10 Integration. This Agreement represents the agreement
of the Parent, each Borrower, the Administrative Agent and the Banks with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Bank relative
to subject matter hereof not expressly set forth or referred to herein, in the
other Loan Documents or in any documentation entered into pursuant to
subsection 3.1(b).
62
13.11 GOVERNING LAW. THIS AGREEMENT (INCLUDING SECTION 12)
AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13.12 Submission to Jurisdiction; Waivers. (a) The
Parent, each Borrower, the Administrative Agent and the Banks
hereby irrevocably and unconditionally:
(i) 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 sitting in New
York County, the courts of the United States of America for the
Southern District of New York, and the appellate courts from any
thereof;
(ii) 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;
(iii) 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 Parent or such Borrower at its address
set forth in subsection 13.2 or, with respect to Borrowers other than
the Company, the Notice of Additional Borrower relating to such
Borrower or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(iv) 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
(v) 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.
(b) Each Borrower other than the Company hereby appoints and
empowers the Parent and the Company, 1114 Avenue of the Americas, New York,
New York 10036-7794, Attention: Treasurer, as its authorized agent (the
"Process Administrative Agent") to receive on behalf of such Borrower service
of any and all process and documents in any such legal action or proceeding
brought in a New York state or federal court sitting in New York City. It is
understood that a copy of such process served on the
63
Process Administrative Agent will be promptly hand delivered or mailed (by
registered or certified airmail if available), postage prepaid, to such
Borrower at its address set forth in paragraph 5 of such Borrower's Notice of
Additional Borrower, but the failure of such Borrower to receive such copy
shall not affect in any way the service of such process on the Process
Administrative Agent. If the Process Administrative Agent shall refuse or be
prevented from acting as agent, notice thereof shall immediately be given by
such Borrowers to the Administrative Agent by registered or certified airmail
(if available), postage prepaid, and such Borrowers agree promptly to
designate another agent in New York City, satisfactory to the Administrative
Agent, to serve in place of the Process Administrative Agent and deliver to
the Administrative Agent written evidence of such substitute agent's
acceptance of such designation.
13.13 Acknowledgments. The Parent, each Borrower, the
Administrative Agent and the Banks hereby acknowledge that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Notes and the other
Loan Documents;
(b) neither the Administrative Agent nor any Bank has any
fiduciary relationship with or duty to the Parent or such Borrower,
as the case may be, arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship
between Administrative Agent and Banks, on one hand, and the Parent
and the Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) as to any matter relating to any Loan Documents, no
joint venture exists among the Banks or among the Parent, the
Borrowers and the Banks.
13.14 WAIVERS OF JURY TRIAL. THE PARENT, THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
13.15 Additional Borrowers. (a) Any Subsidiary of the
Company shall have the right to become a "Borrower" hereunder, and to borrow
hereunder subject to the terms and conditions hereof applicable to a Borrower
and to the following additional conditions:
(i) the Company shall deliver a notice in
substantially the form of Exhibit I hereto (a "Notice of Additional
Borrower") signed by such Subsidiary and countersigned by the Parent
and the Company to the Administrative Agent and the Banks stating
that such Subsidiary desires to become a "Borrower" under this
Agreement and agrees to be bound by the terms hereof. From
64
the time of receipt of such Notice of Additional Borrower by the
Administrative Agent and the Banks and subject to the satisfaction of
each condition precedent contained in such Notice of Additional
Borrower, such Subsidiary shall be a "Borrower" hereunder with all of
the rights and obligations of a Borrower hereunder; provided,
however, that the Company may revoke a Notice of Additional Borrower
with respect to any Subsidiary (other than the Company) upon five
Business Days' written notice to the Administrative Agent, so long as
such Borrower has no Obligations outstanding. No Notice of Additional
Borrower relating to a Subsidiary may be revoked as to amounts owed
by such Subsidiary to the Banks under this Agreement or any Notes or
when an irrevocable notice pursuant to subsection 2.3, or a notice of
acceptance pursuant to subsection 3.1 or 4.2, has been given by such
Subsidiary as a Borrower and is effective;
(ii) if such Subsidiary is a Foreign Subsidiary, if
reasonably requested by the Majority Banks, such Notice of Additional
Borrower shall be accompanied by an opinion of counsel for such
Subsidiary as specified in paragraph 4(a)(ii) of such Notice of
Additional Borrower;
(iii) and the other conditions set forth in such
Notice of Additional Borrower shall have been satisfied (including
the representations and warranties contained therein being true and
correct as of the date thereof).
(b) Promptly, upon receipt of any Notice of Additional
Borrower by the Administrative Agent, the Administrative Agent shall notify
each Bank thereof, and shall deliver to each Bank copies of each document
delivered to the Administrative Agent pursuant to such Notice of Additional
Borrower.
65
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York by their
proper and duly authorized officers as of the day and year first above
written.
W. R. GRACE & CO.-CONN.
By: /s/ Leonard R. Byrne
--------------------------------
Name: Leonard R. Byrne
Title: President -
Authorized Representative
W. R. GRACE & CO.
By: /s/ Bruce L. Hagins
--------------------------------
Name: Bruce L. Hagins
Title: Authorized Representative
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Bank
By: /s/ Robert T. Sacks
--------------------------------
Name: Robert T. Sacks
Title: Managing Director
66
NATIONSBANK, N.A. (SOUTH)
By: /s/ Andrew M. Airheart
-------------------------------
Name: Andrew M. Airheart
Title: Senior Vice President
ABN AMRO BANK N.V., NEW YORK
BRANCH
By: /s/ David W. Stack
-------------------------------
Name: David W. Stack
Title: Vice President
By: /s/ George M. Dugan
-------------------------------
Name: Geroge M. Dugan
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Laurens F. Schaad, Jr.
--------------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
BANK OF NEW YORK
By: /s/ David C. Siegel
------------------------------
Name: David C. Siegel
Title: Assistant Vice
President
THE BANK OF NOVA SCOTIA
By: /s/ William Brown
------------------------------
Name: William Brown
Title: Vice President
67
BARCLAYS BANK PLC
By: /s/ George E. McKean
------------------------------
Name: George E. McKean
Title: Director
CITIBANK, N.A.
By: /s/ Mary Corkran
------------------------------
Name: Mary Corkran
Title: Vice President
COMMERZBANK AG, ATLANTA AGENCY
By: /s/ W.D. Suttles
------------------------------
Name: W.D. Suttles
Title: Vice President
By: /s/ Mary B. Smith
------------------------------
Name: Mary B. Smith
Title: Asst. Vice
President
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ David M. Cawrse
------------------------------
Name: David M. Cawrse
Title: First Vice
President
CREDIT SUISSE FIRST BOSTON
By: /s/ James P. Moran
------------------------------
Name: James P. Moran
Title: Director
By: /s/ J. Scott Karro
------------------------------
Name: J. Scott Karro
Title: Associate
68
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Andrew P. Nesi
------------------------------
Name: Andrew P. Nesi
Title: Vice President
By: /s/ John D. Padilla
------------------------------
Name: John D. Padilla
Title: Vice President
FIRST UNION NATIONAL BANK OF
FLORIDA
By: /s/ Mary A. Morgan
------------------------------
Name: Mary A. Morgan
Title: Vice President &
Senior Portfolio
Manager
MARINE MIDLAND BANK
By: /s/ William M. Holland
------------------------------
Name: William M. Holland
Title: Vice President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Jeffrey Hwang
------------------------------
Name: Jeffrey Hwang
Title: Vice President
UNION BANK OF SWITZERLAND -
NEW YORK
By: /s/ Hamilton W. Bullard
------------------------------
Name: Hamilton W. Bullard
Title: Assistant Treasurer
By: /s/ Samuel Azizo
------------------------------
Name: Samuel Azizo
Title: Vice President
69
SCHEDULE I
Commitments
BANK COMMITMENT
- ---- ----------
The Chase Manhattan Bank $21,875,000
ABN AMRO Bank, New York Branch $21,875,000
Bank of America National
Trust and Savings Assoc. $21,875,000
The Bank of New York $21,875,000
The Bank of Nova Scotia $21,875,000
Barclays Bank PLC $21,875,000
Citibank, N.A. $21,875,000
Commerzbank AG, Atlanta Agency $21,875,000
Credit Lyonnais,
Atlanta Agency $21,875,000
Credit Suisse First Boston $21,875,000
Dresdner Bank AG $21,875,000
First Union National Bank of Florida $21,875,000
Marine Midland Bank $21,875,000
Morgan Guaranty Trust Company
of New York $21,875,000
NationsBank, N.A. (South) $21,875,000
Union Bank of Switzerland $21,875,000
-----------
$350,000,000
============