EXECUTION COPY
3-YEAR
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 21, 1994
among
EG&G, INC.,
THE LENDERS NAMED HEREIN
and
CHEMICAL BANK,
as Administrative Agent
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS . . . . . . . . . . . . . . . . . . .1
SECTION 1.01. Defined Terms. . . . . . . . . . . . . . . .1
SECTION 1.02. Terms Generally. . . . . . . . . . . . . . 12
ARTICLE II. THE CREDITS . . . . . . . . . . . . . . . . . . 12
SECTION 2.01. Commitments. . . . . . . . . . . . . . . . 12
SECTION 2.02. Loans. . . . . . . . . . . . . . . . . . . 13
SECTION 2.03. Competitive Bid Procedure. . . . . . . . . 15
SECTION 2.04. Standby Borrowing Procedure. . . . . . . . 18
SECTION 2.05. Facility Fees. . . . . . . . . . . . . . . 19
SECTION 2.06. Repayment of Loans; Evidence of Debt . . . 19
SECTION 2.07. Interest on Loans . . . . . . . . . . . . 20
SECTION 2.08. Default Interest . . . . . . . . . . . . . 21
SECTION 2.09. Alternate Rate of Interest . . . . . . . . 21
SECTION 2.10. Termination and Reduction
of Commitments . . . . . . . . . . . . . 22
SECTION 2.11. Prepayment . . . . . . . . . . . . . . . . 22
SECTION 2.12. Reserve Requirements; Change
in Circumstances . . . . . . . . . . . . 23
SECTION 2.13. Change in Legality . . . . . . . . . . . . 25
SECTION 2.14. Indemnity. . . . . . . . . . . . . . . . . 26
SECTION 2.15. Pro Rata Treatment.. . . . . . . . . . . . 26
SECTION 2.16. Sharing of Setoffs . . . . . . . . . . . . 27
SECTION 2.17. Payments . . . . . . . . . . . . . . . . . 28
SECTION 2.18. Duty to Mitigate; Assignment of
Commitments Under Certain
Circumstances. . . . . . . . . . . . . . 28
SECTION 2.19. Taxes. . . . . . . . . . . . . . . . . . . . 29
ARTICLE III. REPRESENTATIONS AND WARRANTIES. . . . . . . . . 33
SECTION 3.01. Corporate Existence and Power. . . . . . . 33
SECTION 3.02. Corporate and Governmental
Authorization; Contravention . . . . . . 33
SECTION 3.03. Binding Effect . . . . . . . . . . . . . . 33
SECTION 3.04. Financial Information. . . . . . . . . . . 34
SECTION 3.05. Litigation . . . . . . . . . . . . . . . . 34
SECTION 3.06. Compliance with ERISA. . . . . . . . . . . 34
SECTION 3.07. Taxes. . . . . . . . . . . . . . . . . . . 35
SECTION 3.08. Subsidiaries . . . . . . . . . . . . . . . 35
SECTION 3.09. Representations and Warranties of
Each Borrowing Subsidiary. . . . . . . . 35
SECTION 3.10. Federal Reserve Regulations. . . . . . . . 36
SECTION 3.11. Investment Company Act; Public
Utility Holding Company Act. . . . . . . 37
SECTION 3.12. Environmental and Safety Matters . . . . . 37
ARTICLE IV. CONDITIONS OF LENDING . . . . . . . . . . . . . 38
SECTION 4.01. All Borrowings. . . . . . . . . . . . . . . . 38
SECTION 4.02. Closing Date. . . . . . . . . . . . . . . . . 38
SECTION 4.03. First Borrowing by Each
Borrowing Subsidiary . . . . . . . . . . 39
ARTICLE V. COVENANTS . . . . . . . . . . . . . . . . . . . 40
SECTION 5.01. Information. . . . . . . . . . . . . . . . 40
SECTION 5.02. Corporate Existence; Businesses and
Properties . . . . . . . . . . . . . . . 42
SECTION 5.03. Insurance. . . . . . . . . . . . . . . . . 42
SECTION 5.04. Litigation and Other Notices . . . . . . . 43
SECTION 5.05. Maintaining Records; Access to
Properties and Inspections . . . . . . . 43
SECTION 5.06. Fixed Charge Coverage. . . . . . . . . . . 43
SECTION 5.07. Net Debt to Capitalization Ratio . . . . . 43
SECTION 5.08. Negative Pledge. . . . . . . . . . . . . . 43
SECTION 5.09. Consolidations, Mergers and
Sales of Assets. . . . . . . . . . . . . 45
ARTICLE VI. EVENTS OF DEFAULT . . . . . . . . . . . . . . . 45
ARTICLE VII. GUARANTEE . . . . . . . . . . . . . . . . . . . 49
ARTICLE VIII. THE ADMINISTRATIVE AGENT. . . . . . . . . . . . 51
ARTICLE IX. MISCELLANEOUS . . . . . . . . . . . . . . . . . 55
SECTION 9.01. Notices. . . . . . . . . . . . . . . . . . 55
SECTION 9.02. Survival of Agreement. . . . . . . . . . . 55
SECTION 9.03. Binding Effect . . . . . . . . . . . . . . 56
SECTION 9.04. Successors and Assigns . . . . . . . . . . 56
SECTION 9.05. Expenses; Indemnity. . . . . . . . . . . . 59
SECTION 9.06. Applicable Law . . . . . . . . . . . . . . 60
SECTION 9.07. Waivers; Amendment . . . . . . . . . . . . 60
SECTION 9.08. Entire Agreement . . . . . . . . . . . . . 61
SECTION 9.09. Severability . . . . . . . . . . . . . . . 62
SECTION 9.10. Counterparts . . . . . . . . . . . . . . . 62
SECTION 9.11. Headings . . . . . . . . . . . . . . . . . 62
SECTION 9.12. Right of Setoff. . . . . . . . . . . . . . 62
SECTION 9.13. Jurisdiction; Consent to
Service of Process . . . . . . . . . . . 62
SECTION 9.14. Waiver of Jury Trial . . . . . . . . . . . 63
SECTION 9.15. Addition of Borrowing Subsidiaries . . . . 63
SECTION 9.16. Confidentiality. . . . . . . . . . . . . . 64
SECTION 9.17. Collateral . . . . . . . . . . . . . . . . 65
SECTION 9.18. Interest Rate Limitation. . . . . . . . . . . 65
Exhibits
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
Exhibit D-1 Form of Opinion of Xxxxxx Xxxxx, Esq.
Exhibit D-2 Form of Opinion of Xxxxxx Xxxxx, Esq.
Exhibit E Form of Borrowing Subsidiary Agreement
Schedules
Schedule 2.01 Commitments
Schedule 3.08 Subsidiaries
Schedule 3.12(a) Environmental and Safety Matters
Schedule 3.12(b) Environmental and Safety Matters
Schedule 3.12(c) Environmental and Safety Matters
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT (the "Agreement") dated as of March 21, 1994, among
EG&G, INC., a Massachusetts corporation (the "Company"), the Borrowin
Subsidiaries (as such term is defined herein; together with the Company,
the "Borrowers"), the lenders listed in Schedule 2.01 (the "Lenders") and
CHEMICAL BANK, a New York banking corporation, as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
The Lenders have been requested to extend credit to the Borrowers to
enable them to borrow on a standby revolving credit basis on and after the
date hereof and at any time and from time to time prior to the Maturity Date
a principal amount not in excess of $75,000,000 at any time outstanding.
The Lenders have also been requested to provide a procedure pursuant to
which the Borrowers may invite the Lenders to bid on an uncommitted basis
on short-term borrowings by the Borrowers. The proceeds of all such
borrowings are to be used for general corporate purposes, including
commercial paper back-up and to finance acquisitions. The Lenders are
willing to extend such credit on the terms and subject to the conditions
herein set forth. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in Article I.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly or indirectly controls or is controlled by or is
under common control with the person specified.
"Alternate Base Rate" shall mean, 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%. For purposes hereof,
"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; each change in the Prime Rate shall
be effective on the date such change is publicly announced as effective.
"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
released on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so released for any day which is a
Business Day, the arithmetic average (rounded upwards to the next 1/100th
of 1%), as determined by the Administrative Agent, 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 thereof, 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.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee in the form of Exhibit C.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Board of Directors" shall mean the Board of Directors of the Company or
any duly authorized committee thereof.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders to a single Borrower (or, in the case of a Competitive Borrowing, by
the Lender or Lenders whose Competitive Bids have been accepted pursuant to
Section 2.03) on a single date and as to which a single Interest Period is
in effect.
"Borrowing Subsidiary" shall mean any Subsidiary which shall have
executed and delivered to the Administrative Agent and each Lender a Borrowing
Subsidiary Agreement.
"Borrowing Subsidiary Agreement" shall mean an agreement, in the form
of Exhibit E hereto, duly executed by the Company and a Subsidiary.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City; provided, however, that, when used in connection
with a Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.
"A Change in Control" shall be deemed to have occurred if (a) any person
or group of persons shall have acquired beneficial ownership of more than 50%
of the outstanding Voting Shares of the Company (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and
the applicable rules and regulations thereunder), or (b) during any period of
12 consecutive months, commencing before or after the date of this Agreement,
individuals who on the first day of such period were directors of the Company
(together with any replacement or additional directors who were nominated or
elected by a majority of directors then in office) cease to constitute a
majority of the Board of Directors of the Company.
"Closing Date" shall mean the date hereof.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender hereunder as set forth as of the Closing Date in Schedule 2.01
hereto as such Lender's Commitment may be permanently terminated or reduced
from time to time pursuant to Section 2.10. The Commitment of each Lender
shall automatically and permanently terminate on the Maturity Date if
not terminated earlier pursuant to the terms hereof.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by
a Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid, (i) in
the case of a Eurodollar Loan, the Margin, and (ii) in the case of a Fixed Rate
Loan, the fixed rate of interest offered by the Lender making such Competitive
Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted under the bidding
procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan made pursuant to the bidding
procedure described in Section 2.03. Each Competitive Loan shall be a
Eurodollar Competitive Loan or a Fixed Rate Loan.
"Consolidated EBIT" shall mean, for any period, Consolidated Net Income
of the Company and its Consolidated Subsidiaries excluding the effect of
non-cash extraordinary items and accounting changes for such period, plus
income taxes during such period, plus the aggregate amount deducted in
determining such Consolidated Net Income for such period in respect of
Consolidated Net Interest Expense of the Company and its Consolidated
Subsidiaries for such period, all determined in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the consolidated
net income (or loss) of the Company and its Consolidated Subsidiaries for such
period, determined in accordance with GAAP.
"Consolidated Net Indebtedness" shall mean, for any date, (a) the sum
of all outstanding Indebtedness of the Company and its Consolidated Subsidiaries
as of such date less (b) Eligible Investments as of such date, all determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Interest Expense" shall mean, for any period, (a) the
gross interest expense of the Company and its Consolidated Subsidiaries
(excluding the amortization of transaction costs) in respect of Indebtedness
included within clauses (i) through (iv) of the definition of Indebtedness for
such period minus (b) interest income for such period, all determined
in accordance with GAAP.
"Consolidated Subsidiary" shall mean, at any date, any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements as of such date.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Eligible Investments" shall mean:
(a) cash and cash equivalents;
(b) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America (or
any agency thereof to the extent such obligations are backed by the full faith
and credit of the United States of America), in each case maturing within one
year from the date of acquisition thereof by the Company or any Subsidiary;
(c) investments in money market funds the assets of which are invested
in obligations of the type described in (b) above (irrespective of maturity);
and
(d) other money market investments offered by any of the Lenders or a
commercial bank having the highest credit rating available from Standard &
Poor's Corporation or Xxxxx'x Investors Service, Inc. and having maturities of
less than 90 days.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan or
Eurodollar Standby Loan.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing interest
at a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VI.
"Existing Facilities" shall mean (i) the $150,000,000 Credit Agreement
dated July 1, 1988 among the Company and the lenders named therein and (ii) the
$150,000,000 Credit Agreement dated August 19, 1988 among the Company, the
lenders named therein and the Bank of New England as agent.
"Facility B Credit Agreement" shall mean the 364-Day Competitive Advance
and Revolving Credit Facility Agreement dated the date hereof among the parties
hereto.
"Facility Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, treasurer or assistant treasurer of such
corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean generally accepted accounting principles, applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guaranteed Obligations" shall mean the principal of and interest on the
Loans made to, and the other obligations, monetary or otherwise, of, the
Borrowing Subsidiaries under this Agreement.
"Indebtedness" of any person shall mean at any date, without
duplication, (i) all obligations of such person for borrowed money (but not
including non-recourse obligations of such person), (ii) all obligations of
such person evidenced by bonds, debentures, notes or other similar
instruments, except trade payables and reimbursement obligations in respect
of performance bonds and standby letters of credit to the extent the
obligations underlying such letters of credit would not be considered
Indebtedness, all of which arise in the ordinary course of business, (iii)
all obligations of such person to pay the deferred purchase price of property
or services, except trade accounts payable and accrued expenses arising in the
ordinary course of business, (iv) all obligations of such person as lessee under
capital leases, (v) all Indebtedness of others secured by a Lien on any asset
of such person (but not including non-recourse obligations of such person) and
(vi) all Indebtedness of others guaranteed by such person.
"Interest Payment Date" shall mean (i) as to any Eurodollar Loan for
which the Interest Period is 1, 2 or 3 months, the last day of the Interest
Period, (ii) as to any Eurodollar Loan for which the Interest Period is 6
months, the last day of the Interest Period and the date that would be the
last day of an Interest Period commencing on the same date but having a
duration of 3 months, (iii) as to any ABR Loan, the last day of March, June,
September and December in each year, or if such day is not a Business Day,
the next succeeding Business Day and (iv) as to any Fixed Rate Loan, the
last day of the Interest Period applicable thereto.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the
case may be, and ending on the numerically corresponding day (or, if there
is no numerically corresponding day, on the last day) in the calendar month
that is 1, 2, 3 or 6 months thereafter, as the Borrower may elect, (b) as to
any ABR Borrowing, the period commencing on the date of such Borrowing or on
the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be, and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the Maturity
Date, and (iii) the date such Borrowing is repaid or prepaid in accordance
with Section 2.06 or Section 2.11 and (c) as to any Fixed Rate Borrowing,
the period commencing on the date of such Borrowing and ending on the date
specified in the Competitive Bids in which the offers to make the Fixed Rate
Loans comprising such Borrowing were extended, which shall not be earlier
than seven days after the date of such Borrowing or later than 360 days
after the date of such Borrowing; provided,
however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of Eurodollar Loans only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day. Interest shall accrue from and
including the first day of an Interest Period to but excluding the last day of
such Interest Period.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the arithmetic average of the rates at which
dollar deposits approximately equal in principal amount to (i) in the case of
a Standby Borrowing, the Administrative Agent's portion of such Eurodollar
Borrowing and (ii) in the case of a Competitive Borrowing, a principal amount
that would have been the Administrative Agent's portion of such Competitive
Borrowing had such Competitive Borrowing been a Standby Borrowing, and for a
maturity comparable to such Interest Period are offered to the principal
London offices of the Administrative Agent (or, if the Administrative Agent
does not at the time maintain a London office, the principal London office
of any Affiliate of the Administrative Agent) in immediately available funds
in the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind whatsoever (including any conditional sale or other
title retention agreement, any lease in the nature thereof and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction).
"Loan" shall mean a Competitive Loan or a Standby Loan, whether made as
a Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as permitted hereby.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Regulations" shall mean Regulations G, T, U and X of the Board
as from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Margin Stock" shall have the meaning given such term under Regulation
U of the Board.
"Material Adverse Effect" shall mean a materially adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Company and its Consolidated Subsidiaries taken as a whole.
"Maturity Date" shall mean March 21, 1997.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate
(other than one considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of Code Section 414) is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code that is maintained for current or former employees, or any
beneficiary thereof, of the Company or any ERISA Affiliate.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having Commitments
representing more than 50% of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VI, Lenders holding Loans
representing more than 50% of the aggregate principal amount of the Loans
outstanding.
"Shareholders' Equity" shall mean, with respect to the Company at any
date, (a) the sum of (i) common stock and preferred stock taken at par or
stated value at such date, (ii) capital in excess of par value at such date,
(iii) cumulative translation adjustments and other adjustments required by
GAAP at such date and (iv) retained earnings (or deficit) at such date minus
(b) treasury stock at such date, all determined in accordance with GAAP.
"Standby Borrowing" shall mean a Borrowing consisting of simultaneous
Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A-5.
"Standby Loans" shall mean the revolving loans made pursuant to
Section 2.04. Each Standby Loan shall be a Eurodollar Standby Loan or an ABR
Loan.
"subsidiary" shall mean, with respect to any person (the "parent"), any
corporation, association or other business entity of which securities or other
ownership interests representing more than 50% of the ordinary voting power are,
at the time as of which any determination is being made, owned or controlled by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Subsidiary" shall mean a subsidiary of the Company.
"Total Commitment" shall mean, at any time, the aggregate amount of
Commitments of all the Lenders, as in effect at such time.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate"
shall include the LIBO Rate, the Alternate Base Rate and the Fixed Rate.
"Voting Shares" shall mean, as to any corporation, outstanding shares of
stock of any class of such corporation entitled to vote in the election of
directors, excluding shares entitled so to vote only upon the happening of
some contingency.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided,
however, that for purposes of determining compliance with any covenant set
forth in Article V, such terms shall be construed in accordance with GAAP as
in effect on the date hereof applied on a basis consistent with the
application used in preparing the Company's audited financial statements
referred to in Section 3.04.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
and
relying upon the representations and warranties herein set forth, each
Lender
agrees, severally and not jointly, to make Standby Loans to the Borrowers,
at
any time and from time to time on and after the Closing Date hereof and
until
the earlier of the Maturity Date and the termination of the Commitment of
such
Lender, in an aggregate principal amount at any time outstanding not to
exceed
such Lender's Commitment minus the amount by which the Competitive
Loans
outstanding at such time shall be deemed to have used such Commitment
pursuant to Section 2.15, subject, however, to the conditions that (i) at no
time shall (A) the sum of (x) the outstanding aggregate principal amount of
all
Standby Loans made by all Lenders plus (y) the outstanding aggregate
principal
amount of all Competitive Loans made by all Lenders exceed (B) the Total
Commitment and (ii) at all times the outstanding aggregate principal amount
of all Standby Loans made by each Lender shall equal the product of (A) the
percentage which its Commitment represents of the Total Commitment times
(B)
the outstanding aggregate principal amount of all Standby Loans.
Within the foregoing limits, the Borrowers may borrow, pay or prepay
and reborrow Standby Loans hereunder, on and after the Closing Date and
prior
to the Maturity Date, subject to the terms, conditions and limitations set
forth herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as part
of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective Commitments; provided, however, that the
failure of any Lender to make any Standby Loan shall not in itself relieve
any other Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other
Lender to make any Loan required to be made by such other Lender). Each
Competitive Loan shall be made in accordance with the procedures set forth
in Section 2.03. The Standby Loans or Competitive Loans comprising any
Borrowing shall be in an aggregate principal amount which is an integral
multiple of $1,000,000 and not less than $5,000,000 (or an aggregate
principal amount equal to the remaining balance of the available
Commitments). (b) Each Competitive Borrowing shall be
comprised entirely of Eurodollar Competitive Loans or Fixed Rate Loans,
and each Standby Borrowing shall be comprised entirely of Eurodollar
Standby Loans or ABR Loans, as any Borrower may request pursuant to
Section 2.03 or 2.04, as applicable. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that (i) any exercise of such
option shall not affect the obligation of such Borrower to repay such Loan
in accordance with the terms of this Agreement and (ii) the Borrowers shall
not be liable for increased costs under Section 2.12 or 2.13 to the extent that
(A) such costs could be avoided by the use of a different branch or Affiliate
to make Eurodollar Loans and (B) such use would not, in the judgment of
such Lender, entail any expense for which such Lender shall not be
indemnified hereunder. Borrowings of more than one Type may be
outstanding at the same time; provided, however, that no Borrowing shall
be requested which, if made, would result in an aggregate of more than 10
separate Standby Borrowings comprised of Eurodollar Loans being
outstanding hereunder at any one time. For purposes of the foregoing, Loans
having different Interest Periods, regardless of whether they commence on
the same date, shall be considered separate Loans.
(c) Subject to Section 2.02(d), each Lender shall make each Loan to be
made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds to the Administrative Agent in New York, New York, not
later than 12:00 noon, New York City time, and the Administrative Agent
shall by 3:00 p.m., New York City time, credit the amounts so received to
the general deposit account of the applicable Borrower with the
Administrative Agent or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Lenders. Competitive
Loans shall be made by the Lender or Lenders whose Competitive Bids
therefor are accepted pursuant to Section 2.03 in the amounts so accepted.
Standby Loans shall be made by the Lenders pro rata in accordance with
Section 2.15. Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's portion of such
Borrowing, the Administrative Agent may assume that such Lender has
made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with this paragraph (c) and the Administrative
Agent may, in reliance upon such assumption, make available to the
applicable Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the applicable Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of such
Borrower, the interest rate applicable at the time to the Loans comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds
Effective Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as
part of such Borrowing for purposes of this Agreement. (d)
Any Borrower may refinance all or any part of any Borrowing with a
Borrowing of the same or a different Type made pursuant to Section 2.03 or
Section 2.04, subject to the conditions and limitations set forth herein and
elsewhere in this Agreement, including refinancings of Competitive
Borrowings with Standby Borrowings and Standby Borrowings with
Competitive Borrowings. Any Borrowing or part thereof so refinanced
shall be deemed to be repaid in accordance with Section 2.06 with the
proceeds of a new Borrowing hereunder and the proceeds of the new
Borrowing, to the extent they do not exceed the principal amount of the
Borrowing being refinanced, shall not be paid by the Lenders to the
Administrative Agent or by the Administrative Agent to the applicable
Borrower pursuant to Section 2.02(c); provided, however, that (i) if the
principal amount extended by a Lender in a refinancing is greater than the
principal amount extended by such Lender in the Borrowing being
refinanced, then such Lender shall pay such difference to the Administrative
Agent for distribution to the Lender described in (ii) below, (ii) if the
principal amount extended by a Lender in the Borrowing being refinanced is
greater than the principal amount being extended by such Lender in the
refinancing, the Administrative Agent shall return the difference to such
Lender out of amounts received pursuant to (i) above and (iii) to the extent
any Lender fails to pay the Agent amounts due from it pursuant to (i) above,
any Loan or portion thereof being refinanced with such amounts shall not be
deemed repaid in accordance with Section 2.06 and shall be payable by the
Company.
SECTION 2.03. Competitive Bid Procedure. (a) In
order to request Competitive Bids, a Borrower shall hand deliver or
telecopy to the Administrative Agent a duly completed Competitive Bid
Request in the form of Exhibit A-1 hereto, to be received by the
Administrative Agent (i) in the case of a Eurodollar Competitive
Borrowing, not later than 10:00 a.m., New York City time, four Business
Days before a proposed Competitive Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before a proposed Competitive Borrowing. No ABR Loan
shall be requested in, or made pursuant to, a Competitive Bid Request. A
Competitive Bid Request that does not conform substantially to the format
of Exhibit A-1 may be rejected in the Administrative Agent's sole
discretion, and the Administrative Agent shall promptly notify the
applicable Borrower of such rejection by telecopy. Each Competitive Bid
Request shall refer to this Agreement and specify whether the Borrowing
then being requested is to be a Eurodollar Borrowing or a Fixed Rate
Borrowing, the date of such Borrowing (which shall be a Business Day),
the aggregate principal amount thereof, which shall be in a minimum
principal amount of $5,000,000 and in an integral multiple of $1,000,000,
and the Interest Period with respect thereto (which may not end after the
Maturity Date). Promptly after its receipt of a Competitive Bid Request that
is not rejected as aforesaid, the Administrative Agent shall invite by
telecopy (in the form set forth in Exhibit A-2 hereto) the Lenders to bid, on
the terms and conditions of this Agreement, to make Competitive Loans.
(b) Each Lender invited to bid may, in its sole discretion, make one
or more Competitive Bids to the applicable Borrower responsive to such
Borrower's Competitive Bid Request. Each Competitive Bid by a Lender
must be received by the Administrative Agent by telecopy, in the form of
Exhibit A-3 hereto, (i) in the case of a Eurodollar Competitive Borrowing,
not later than 9:30 a.m., New York City time, three Business Days before a
proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to
the format of Exhibit A-3 may be rejected by the Administrative Agent, and
the Administrative Agent shall notify the Lender making such
nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (x) the principal
amount (which shall be in a minimum principal amount of $5,000,000 and
in an integral multiple of $1,000,000 and which may equal the entire
principal amount of the Competitive Borrowing requested) of the
Competitive Loan or Loans that the Lender is willing to make, (y) the
Competitive Bid Rate or Rates at which the Lender is prepared to make the
Competitive Loan or Loans and (z) the Interest Period and the last day
thereof. If any Lender invited to bid shall elect not to make a Competitive
Bid, such Lender shall so notify the Administrative Agent by telecopy (I) in
the case of Eurodollar Competitive Loans, not later than 9:30 a.m., New
York City time, three Business Days before a proposed Competitive
Borrowing, and (II) in the case of Fixed Rate Loans not later than 9:30 a.m.,
New York City time, on the day of a proposed Competitive Borrowing;
provided, however, that failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Loan as part of
such Competitive Borrowing. A Competitive Bid submitted by a Lender
pursuant to this paragraph (b) shall be irrevocable. (c) The
Administrative Agent shall promptly notify the applicable Borrower, by
telecopy, of all the Competitive Bids made, the Competitive Bid Rate and
the principal amount of each Competitive Loan in respect of which a
Competitive Bid was made and the identity of the Lender that made each
bid. The Administrative Agent shall send a copy of all Competitive Bids to
such Borrower for its records as soon as practicable after completion of the
bidding process set forth in this Section 2.03. (d) The applicable
Borrower may in its sole and absolute discretion, subject only to the
provisions of this paragraph (d), accept or reject any Competitive Bid
referred to in paragraph (c) above. Such Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has
decided to accept or reject any of or all the bids referred to in paragraph (c)
above, (x) in the case of a Eurodollar Competitive Borrowing, not later than
10:30 a.m., New York City time, three Business Days before a proposed
Competitive Borrowing, and (y) in the case of a Fixed Rate Borrowing, not
later than 10:30 a.m., New York City time, on the day of a proposed
Competitive Borrowing; provided, however, that (i) the failure of such
Borrower to give such notice shall be deemed to be a rejection of all the
bids referred to in paragraph (c) above, (ii) such Borrower shall not accept
a bid made at a particular Competitive Bid Rate if it has decided to reject a
bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by such Borrower shall not exceed the principal
amount specified in the Competitive Bid Request, (iv) if such Borrower
shall accept a bid or bids made at a particular Competitive Bid Rate but the
amount of such bid or bids shall cause the total amount of bids to be
accepted to exceed the amount specified in the Competitive Bid Request,
then such Borrower shall accept a portion of such bid or bids in an amount
equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted with respect to such
Competitive Bid Request, which acceptance, in the case of multiple bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such bid at such Competitive Bid Rate, and (v) except
pursuant to clause (iv) above, no bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of
$5,000,000 and an integral multiple of $1,000,000; provided further,
however, that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid Rate pursuant to
clause (iv) the amounts shall be rounded to integral multiples of $1,000,000
in a manner which shall be in the discretion of the applicable Borrower. A
notice given pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy, and each successful
bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan or Loans in respect of
which its bid has been accepted.
(f) A Competitive Bid Request
shall not be made within five Business Days after the date of any previous
Competitive Bid Request.
(g) If the Administrative Agent shall
elect to submit a Competitive Bid in its capacity as a Lender, it shall
submit such bid directly to the applicable Borrower one quarter of an hour
earlier than the latest time at which the other Lenders are required to
submit their bids to the Administrative Agent pursuant to paragraph (b)
above. (h) All notices required by this Section 2.03 shall be
given in accordance with Section 9.01. SECTION 2.04.
Standby Borrowing Procedure. In order to request a Standby Borrowing, a
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Standby Borrowing Request in the form of Exhibit A-5 (a) in the
case of a Eurodollar Standby Borrowing, not later than 10:30 a.m., New
York City time, three Business Days before such Borrowing, and (b) in the
case of an ABR Borrowing, not later than 10:30 a.m., New York City time,
on the day of such Borrowing. No Fixed Rate Loan shall be requested or
made pursuant to a Standby Borrowing Request. Such notice shall be
irrevocable and shall in each case specify (i) whether the Borrowing then
being requested is to be a Eurodollar Standby Borrowing or an ABR
Borrowing; (ii) the date of such Standby Borrowing (which shall be a
Business Day) and the amount thereof; and (iii) if such Borrowing is to be a
Eurodollar Standby Borrowing, the Interest Period with respect thereto,
which shall not end after the Maturity Date. If no election as to the Type of
Standby Borrowing is specified in any such notice, then the requested
Standby Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any Eurodollar Standby Borrowing is specified in any such
notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. Notwithstanding any other provision of this
Agreement to the contrary, no Standby Borrowing shall be requested if the
Interest Period with respect thereto would end after the Maturity Date. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.04 and of each Lender's portion of the requested
Borrowing. SECTION 2.05. Facility Fees. (a) The Company
agrees to pay to each Lender, through the Administrative Agent, on each
March 31, June 30, September 30 and December 31 (with the first payment
being due on March 31, 1994) and on the date on which the Commitment of
such Lender shall be terminated as provided herein, a facility fee (a
"Facility Fee"), at a rate per annum equal to .125% per annum on the
average daily amount of the Commitment of such Lender, whether used or
unused, during the preceding quarter (or other period commencing on the
date of this Agreement, or ending with the Maturity Date or the date on
which the Commitment of such Lender shall be terminated). All Facility
Fees shall be computed on the basis of the actual number of days elapsed in
a year of 360 days The Facility Fee due to each Lender shall commence to
accrue on the date of this Agreement, and shall cease to accrue on the
earlier of the Maturity Date and the termination of the Commitment of such
Lender as provided herein. (b) All Facility Fees shall be
paid on the dates due, in immediately available funds, to the
Administrative
Agent for distribution, if and as appropriate, among the Lenders. Once
paid, none of the Facility Fees shall be refundable under any
circumstances. SECTION 2.06 Repayment of Loans;
Evidence of Debt. (a) Each Borrower hereby agrees that the outstanding
principal balance of each Standby Loan shall be payable on the last day of
the Interest Period applicable thereto and on the Maturity Date and that the
outstanding principal balance of each Competitive Loan shall be payable
on the last day of the Interest Period applicable thereto. Each Loan shall
bear interest on the outstanding principal balance thereof as set forth in
Section 2.07. (b) Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness
to such Lender resulting from each Loan made by such Lender from time to
time, including the amounts of principal and interest payable and paid such
Lender from time to time under this Agreement. (i) the
amount of each Loan made hereunder, the Type of each Loan made and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower
to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from each Borrower and each Lender's
share thereof.
(d) The entries made in the accounts maintained
pursuant to paragraphs (b) and (c) of this Section 2.06 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that
the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligations
of the Borrowers to repay the Loans in accordance with their terms.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions of
Section 2.08, the Loans comprising each Eurodollar Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal to (i) in the case of each
Eurodollar Standby Loan, the LIBO Rate for the Interest Period in effect for
such Borrowing plus 1/4 of 1% and (ii) in the case of each Eurodollar
Competitive Loan, the LIBO Rate for the Interest Period in effect for such
Borrowing plus the Margin offered by the Lender making such Loan and
accepted by the applicable Borrower pursuant to Section 2.03.
(b) Subject to the provisions of Section 2.08, the Loans comprising each
ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be,
for periods during which the Alternate Base Rate is determined by
reference to the Prime Rate and 360 days for other periods) at a rate per
annum equal to the Alternate Base Rate.
(c) Subject to the provisions of Section 2.08, each Fixed Rate Loan shall
bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed
over a year of 360 days) equal to the fixed rate of interest offered by the
Lender making such Loan and accepted by the Borrower pursuant to Section
2.03.
(d) Interest on each Loan shall be payable on each Interest Payment
Date applicable to such Loan except as otherwise provided in this
Agreement. The applicable LIBO Rate or Alternate Base Rate for each
Interest Period or day within an Interest Period, as the case may be,
shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.08. Default Interest. If a Borrower shall default in the
payment of the principal of or interest on any Loan or any other
amount becoming due hereunder, whether by scheduled maturity, notice of
prepayment, acceleration or otherwise, such Borrower shall owe interest,
payable on demand, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment (after as well as
before judgment) at a rate per annum (computed as provided in Section
2.07(b)) equal to the Alternate Base Rate plus 2%.
SECTION 2.09. Alternate Rate of Interest. (a) In the event, and on
each occasion, that
on the day two Business Days prior to the commencement of any Interest
Period for a Eurodollar Borrowing the Administrative Agent shall have
determined (i) that dollar deposits in the principal amounts of the
Eurodollar Loans comprising such Borrowing are not generally available in
the London interbank market or (ii) that reasonable means do not exist for
ascertaining the LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give telecopy notice of such determination to the
Borrowers and the Lenders. In the event of any such determination under
clauses (i) or (ii) above, until the Administrative Agent shall have advised
the Borrowers and the Lenders that the circumstances giving rise to such
notice no longer exist, (x) any request by a Borrower for a Eurodollar
Competitive Borrowing pursuant to Section 2.03 shall be of no force and
effect and shall be denied by the Administrative Agent and (y) any request
by a Borrower for a Eurodollar Standby Borrowing pursuant to Section
2.04 shall be deemed to be a request for an ABR Borrowing.
(b)
In the event a Lender notifies the Administrative Agent that the rates at
which dollar deposits are being offered will not adequately and fairly
reflect the cost to such Lender of making or maintaining its Eurodollar Loan
during such Interest Period, the Administrative Agent shall notify the
applicable Borrower of such notice and until the Lender shall have advised
the Administrative Agent that the circumstances giving rise to such notice no
longer exist, any request by such Borrower for a Eurodollar Standby
Borrowing shall be deemed a request for an ABR Borrowing for the same
Interest Period with respect to such Lender. (c) Each
determination by the Administrative Agent hereunder shall be made in good
faith and shall be conclusive absent manifest error. SECTION
2.10. Termination and Reduction of Commitments. (a) The Commitments
shall be automatically terminated on the Maturity Date. (b) Upon at least
three Business Days' prior irrevocable telecopy notice to the
Administrative Agent, the Company may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $1,000,000 and in a
minimum principal amount of $5,000,000 and (ii) no such termination or
reduction shall be made which would reduce the Total Commitment to an
amount less than the aggregate outstanding principal amount of the
Competitive Loans. (c) Each reduction in the Total Commitment
hereunder shall be made ratably among the Lenders in accordance with their
respective Commitments. The Company shall pay to the Administrative
Agent for the account of the Lenders, on each date of reduction of any
portion of the Total Commitment, the Facility Fees on the amount of the
Commitments so terminated accrued through the date of such termination or
reduction. SECTION 2.11. Prepayment. (a) Each Borrower
shall have the right at any time and from time to time to prepay any Standby
Borrowing, in whole or in part, upon giving telecopy notice (or telephone
notice promptly confirmed by telecopy) to the Administrative Agent: (i)
before 10:00 a.m., New York City time, three Business Days prior to
prepayment, in the case of Eurodollar Loans, and (ii) before 10:00 a.m.,
New York City time, one Business Day prior to prepayment, in the case of
ABR Loans; provided, however, that each partial prepayment shall be in an
amount which is an integral multiple of $1,000,000 and not less than
$5,000,000. No prepayment may be made in respect of any Competitive
Borrowing. (b) On the date of any termination or reduction of
the Commitments pursuant to Section 2.10, the Borrowers shall pay or
prepay so much of the Standby Borrowings as shall be necessary in order
that the aggregate principal amount of the Competitive Loans and Standby
Loans outstanding will not exceed the Total Commitment, after giving effect
to such termination or reduction. (c) Each notice of prepayment
shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall
commit the applicable Borrower to prepay such Borrowing (or portion
thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.11 shall be subject to Section 2.14 but
otherwise without premium or penalty. All prepayments under this Section
2.11 shall be accompanied by accrued interest on the principal amount
being prepaid to the date of payment. SECTION 2.12. Reserve
Requirements; Change in Circumstances. (a) Notwithstanding any other
provision herein, if after the date of this Agreement any change in
applicable law or regulation or in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) shall result
in the imposition, modification or applicability of any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by any Lender, or shall result in the
imposition on any Lender or the London interbank market of any other
condition affecting this Agreement, such Lender's Commitment or any
Eurodollar Loan or Fixed Rate Loan made by such Lender, and the result of
any of the foregoing shall be to increase the cost to such Lender of making
or maintaining any Eurodollar Loan or Fixed Rate Loan or to reduce the
amount of any sum received or receivable by such Lender with respect to
any Eurodollar Loan or Fixed Rate Loan hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender to be material,
then such additional amount or amounts as will compensate such Lender for
such additional costs or reduction will be paid by the Borrowers to such
Lender upon demand. Notwithstanding the foregoing, no Lender shall be
entitled to request compensation under this paragraph with respect to any
Competitive Loan if the change giving rise to such request was applicable
to such Lender at the time of submission of the Competitive Bid pursuant to
which such Competitive Loan was made.
(b) If any Lender
shall have determined that the adoption after the date hereof of any law,
rule, regulation or guideline arising out of the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital
Standards," or the adoption after the date hereof of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of
the foregoing or in the interpretation or administration of any of the
foregoing by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or any lending office of such Lender) with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's
capital as a consequence of this Agreement, such Lender's Commitment or
the Loans made by such Lender pursuant hereto to a level below that which
such Lender could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then
from time to time such additional amount or amounts as will compensate
such Lender for such reduction will be paid by the Borrowers to such
Lender. (c) A certificate of each Lender setting forth such
amount or amounts as shall be necessary to compensate such Lender as
specified in paragraph (a) or (b) above, as the case may be, shall be
delivered to the Company promptly by such Lender upon becoming aware
of any costs pursuant to paragraphs (a) or (b) above and shall be conclusive
absent manifest error. The Company shall pay each Lender the amount
shown as due on any such certificate delivered by it within 10 days after its
receipt of the same. (d) Failure on the part of any Lender to
demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with respect to any
period shall not constitute a waiver of such Lender's right to demand
compensation with respect to such period or any other period. The
protection of this Section shall be available to each Lender regardless of
any possible contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have
occurred or been imposed. No Lender shall be entitled to compensation
under this Section 2.12 for any costs incurred or reduction suffered with
respect to any date unless such Lender shall have notified the Company that
it will demand compensation for such costs or reductions not more than 90
days after the later of (i) such date and (ii) the date on which such Lender
shall have become aware of such costs or reductions. Notwithstanding any
other provision of this Section 2.12, no Lender shall demand compensation
for any increased cost or reduction referred to above if it shall not at the
time be the general policy or practice of such Lender to demand such
compensation in similar circumstances under comparable provisions of
other credit agreements, if any. SECTION 2.13. Change in
Legality. (a) Notwithstanding any other provision herein, if any change in
any law or regulation or in the interpretation thereof by any Governmental
Authority charged with the administration or interpretation thereof shall
make it unlawful for any Lender to make or maintain any Eurodollar Loan or
to give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Company and to the
Administrative Agent, such Lender may: (i) declare that
Eurodollar Loans will not thereafter be made by such Lender hereunder,
whereupon such Lender shall not submit a Competitive Bid in response to a
request for Eurodollar Competitive Loans and any request for a Eurodollar
Standby Borrowing shall, as to such Lender only, be deemed a request for
an ABR Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below. In the event any
Lender shall exercise its rights under (i) or (ii) above, all payments and
prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or
the converted Eurodollar Loans of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans. (b) For purposes of this
Section 2.13, a notice by any Lender shall be effective as to each
Eurodollar Loan, if lawful, on the last day of the Interest Period currently
applicable to such Eurodollar Loan; in all other cases such notice shall be
effective on the date of receipt. SECTION 2.14. Indemnity. The
Borrowers shall indemnify each Lender against any out-of-pocket loss or
expense which such Lender may sustain or incur as a consequence of (a)
any failure to borrow or to refinance any Loan hereunder after irrevocable
notice of such borrowing or refinancing has been given pursuant to Section
2.03 or 2.04, (b) any payment, prepayment or conversion, or assignment
required under Section 2.18, of a Eurodollar Loan required by any other
provision of this Agreement (other than Section 2.13) or otherwise made or
deemed made on a date other than the last day of the Interest Period, if any,
applicable thereto, (c) any default in payment or prepayment of the
principal amount of any Loan or any part thereof or interest accrued thereon,
as and when due and payable (at the due date thereof, whether by scheduled
maturity, acceleration, irrevocable notice of prepayment or otherwise) or
(d) the occurrence of any Event of Default, including, in each such case, any
loss or reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties acquired to
effect or maintain such Loan or any part thereof as a Eurodollar Loan or a
Fixed Rate Loan. Such loss or reasonable expense shall include an amount
equal to the excess, if any, as reasonably determined by such Lender, of (i)
its cost of obtaining the funds for the Loan being paid, prepaid, refinanced
or not borrowed or so assigned (assumed to be the LIBO Rate applicable
thereto or, in the case of a Fixed Rate Loan, the fixed rate of interest
applicable thereto) for the period from the date of such payment,
prepayment, refinancing or failure to borrow or refinance or such
assignment, to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow or refinance the Interest Period for such Loan
which would have commenced on the date of such failure) over (ii) the
amount of interest (as reasonably determined by such Lender) that would be
realized by such Lender in reemploying in similar investments the funds so
paid, prepaid or not borrowed or refinanced or so assigned for the
remainder of such period or Interest Period, as the case may be. A
certificate of any Lender setting forth any amount or amounts which such
Lender is entitled to receive pursuant to this Section 2.14 shall be delivered
to the Borrowers and shall be conclusive absent manifest error.
SECTION 2.15. Pro Rata Treatment. Except as required under Section
2.12, each payment or prepayment of principal of any Standby Borrowing,
each payment of interest on the Standby Loans, each payment of the Facility
Fees, each reduction of the Commitments and each refinancing of any
Borrowing with a Standby Borrowing of any Type, shall be allocated pro
rata among the Lenders in accordance with their respective Commitments
(or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding
Standby Loans). Each payment of principal of any Competitive Borrowing
shall be allocated pro rata among the Lenders participating in such
Borrowing in accordance with the respective principal amounts of their
outstanding Competitive Loans comprising such Borrowing. Each payment
of interest on any Competitive Borrowing shall be allocated pro rata among
the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of
determining the available Commitments of the Lenders at any time, each
outstanding Competitive Borrowing shall be deemed to have utilized the
Commitments of the Lenders (including those Lenders which shall not have
made Loans as part of such Competitive Borrowing) pro rata in accordance
with such respective Commitments. Each Lender agrees that in computing
such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.16. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim, or
pursuant to a secured claim under Section 506 of Title 11 of the United
States Code or other security or interest arising from, or in lieu of, such
secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Standby Loan or Loans
as a result of which the unpaid principal portion of its Standby Loans shall
be proportionately less than the unpaid principal portion of the Standby
Loans of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to
such other Lender the purchase price for, a participation in the Standby
Loans of such other Lender, so that the aggregate unpaid principal amount of
the Standby Loans and participations in the Standby Loans held by each
Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Standby Loans then outstanding as the principal amount of its
Standby Loans prior to such exercise of banker's lien, setoff or counterclaim
or other event was to the principal amount of all Standby Loans outstanding
prior to such exercise of banker's lien, setoff or counterclaim or other event;
provided, however, that, if any such purchase or purchases or adjustments
shall be made pursuant to this Section 2.16 and the payment giving rise
thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the
purchase price or prices or adjustment restored without interest. Any
Lender holding a participation in a Standby Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing to such Lender by
reason thereof as fully as if such Lender had made a Standby Loan in the
amount of such participation. SECTION 2.17. Payments. (a)
The Borrowers shall make each payment (including principal of or interest
on any Borrowing and any Facility Fees or other amounts) hereunder from
an account in the United States not later than 12:00 noon, New York City
time, on the date when due in dollars to the Administrative Agent at its
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, in immediately
available funds. (b) Whenever any payment (including principal
of or interest on any Borrowing or any Facility Fees or other amounts)
hereunder shall become due, or otherwise would occur, on a day that is not
a Business Day, such payment may be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of interest or Facility Fees, if applicable. SECTION
2.18. Duty to Mitigate; Assignment of Commitments Under Certain
Circumstances. (a) Any Lender (or Transferee) claiming any additional
amounts payable pursuant to Section 2.12 or Section 2.19 or exercising its
rights under Section 2.13 shall use reasonable efforts (consistent with legal
and regulatory restrictions) to file any certificate or document requested by
the Company or to change the jurisdiction of its applicable lending office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue or
avoid the circumstances giving rise to such exercise and would not, in the
sole determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee). (b) In the event
that any Lender shall have delivered a notice or certificate pursuant to
Section 2.09(b), 2.12 or 2.13, or the Borrower shall be required to make
additional payments to any Lender under Section 2.19, the Company shall
have the right, at its own expense (which shall include the processing and
recordation fee referred to in Section 9.04(b)), upon notice to such Lender
and the Administrative Agent, to require such Lender to transfer and assign
without recourse (in accordance with and subject to the restrictions
contained in Section 9.04) all interests, rights and obligations contained
hereunder to another financial institution approved by the Administrative
Agent (which approval shall not be unreasonably withheld) which shall
assume such obligations; provided that (i) no such assignment shall conflict
with any law, rule or regulation or order of any Governmental Authority and
(ii) the assignee or the Borrowers, as the case may be, shall pay to the
affected Lender in immediately available funds on the date of such
assignment the principal of and interest accrued to the date of payment on
the Loans made by it hereunder and all other amounts accrued for its
account or owed to it hereunder. SECTION 2.19. Taxes. (a) Any
and all payments to the Lenders hereunder shall be made, in accordance
with Section 2.17, free and clear of and without deduction for any and all
current or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding (i) income taxes imposed
on the net income of the Administrative Agent or any Lender (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on the net income of
the Administrative Agent or any Lender (or Transferee), in each case by the
jurisdiction under the laws of which the Administrative Agent or such
Lender (or Transferee) is organized or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities, collectively or individually, "Taxes"). If any Borrower
shall be required to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender (or any Transferee) or the Administrative Agent,
(i) the sum payable shall be increased by the amount (an "additional
amount") necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.19)
such Lender (or Transferee) or the Administrative Agent (as the case may
be) shall receive an amount equal to the sum it would have received had no
such deductions been made, (ii) such Borrower shall make such deductions
and (iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law. (b)
In addition, the Borrowers shall pay to the relevant Governmental Authority
in accordance with applicable law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
("Other Taxes"). (c) The Borrowers shall indemnify each Lender
(or Transferee) and the Administrative Agent for the full amount of Taxes
and Other Taxes paid by such Lender (or Transferee) or the Administrative
Agent, as the case may be, and any liability (including penalties, interest
and expenses (including reasonable attorney's fees and expenses)) arising
therefrom or with respect thereto. A certificate as to the amount of such
payment or liability prepared by a Lender, or the Administrative Agent on
its behalf, absent manifest error, shall be final, conclusive and binding for
all purposes. Such indemnification shall be made within 30 days after the
date the Lender (or Transferee) or the Administrative Agent, as the case
may be, makes written demand therefor. (d) If a Lender (or
Transferee) or the Administrative Agent shall become aware that it is
entitled to claim a refund from a Governmental Authority in respect of
Taxes or Other Taxes as to which it has been indemnified by the
Borrowers, or with respect to which the Borrowers have paid additional
amounts, pursuant to this Section 2.19, it shall promptly notify the
Borrowers of the availability of such refund claim and shall, within 30 days
after receipt of a request by the Borrowers, make a claim to such
Governmental Authority for such refund at the Borrowers' expense. If a
Lender (or Transferee) or the Administrative Agent receives a refund
(including pursuant to a claim for refund made pursuant to the preceding
sentence) in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrowers or with respect to which the Borrowers have
paid additional amounts pursuant to this Section 2.19, it shall within 30
days from the date of such receipt pay over such refund to the
Borrowers (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrowers under this Section 2.19 with respect to the
Taxes or Other Taxes giving rise to such refund), without interest (other
than interest paid by the relevant Governmental Authority with respect to
such refund); provided, however, that the Borrowers, upon the request of
such Lender (or Transferee) or the Administrative Agent, agree to repay the
amount paid over to the Borrowers (plus penalties, interest or other
charges) to such Lender (or Transferee) or the Administrative Agent in the
event such Lender (or Transferee) or the Administrative Agent is required
to repay such refund to such Governmental Authority. (e)
As soon as practicable after the date of any payment of Taxes or Other
Taxes by the Borrowers to the relevant Governmental Authority, the
Borrowers will deliver to the Administrative Agent, at its address referred
to in Section 9.01, the original or a certified copy of a receipt issued by
such Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans
made hereunder for a period of 3 years. (g) Each Lender
(or Transferee) that is organized under the laws of a jurisdiction other
than the United States, any State thereof or the District of Columbia (a
"Non-U.S. Lender") shall deliver to the Company and the Administrative
Agent two copies of either United States Internal Revenue Service Form
1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest", a Form
W-8, or any subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code,
is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B)
of the Code) of the Company and is not a controlled foreign corporation
related to the Company (within the meaning of Section 864(d)(4) of the
Code)), properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or reduced rate of, U.S. Federal
withholding tax on payments by the Company under this Agreement. Such
forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on or before the date such participation holder
becomes a Transferee hereunder) and on or before the date, if any, such
Non-U.S. Lender changes its applicable lending office by designating a
different lending office (a "New Lending Office"). In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence
or invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.19(g), a Non-U.S.
Lender shall not be required to deliver any form pursuant to this Section
2.19(g) that such Non-U.S. Lender is not legally able to deliver.
(h) The Borrowers shall not be required to indemnify any Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect
of United States Federal withholding tax pursuant to paragraph (a) or (c)
above to the extent that (i) the obligation to withhold amounts with respect
to United States Federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on the date such participation
holder became a Transferee hereunder) or, with respect to payments to a
New Lending Office, the date such Non-U.S. Lender designated such New
Lending Office with respect to a Loan; provided, however, that this clause
(i) shall not apply to any Transferee or New Lending Office that becomes a
Transferee or New Lending Office as a result of an assignment,
participation, transfer or designation made at the request of the Company;
and provided further, however, that this clause (i) shall not apply to the
extent the indemnity payment or additional amounts any Transferee, or
Lender (or Transferee) through a New Lending Office, would be entitled to
receive (without regard to this clause (i)) do not exceed the indemnity
payment or additional amounts that the person making the assignment,
participation or transfer to such Transferee, or Lender (or Transferee)
making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would
not have arisen but for a failure by such Non-U.S. Lender to comply with
the provisions of paragraph (g) above. (i) Any Lender (or
Transferee) claiming any indemnity payment or additional amounts
payable pursuant to this Section 2.19 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document reasonably requested in writing by the Company or to change the
jurisdiction of its applicable lending office if the making of such a filing or
change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and
would not, in the sole determination of such Lender (or Transferee), be
otherwise disadvantageous to such Lender (or Transferee). (j)
Nothing contained in this Section 2.19 shall require any Lender (or
Transferee) or the Administrative Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary). ARTICLE III
Representations and Warranties The Company represents
and warrants to each of the Lenders that: SECTION 3.01.
Corporate Existence and Power. The Company and each Borrowing
Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, and has
all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 3.02. Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the Company
of this Agreement (a) is within the Company's corporate powers, (b)
has been duly authorized by all necessary corporate action, (c)
requires no action by or in respect of, or filing with, any Governmental
Authority and (d) does not (i) contravene, or constitute a default under, any
applicable provision of law or regulation either of the United States or a
particular state thereof or of the certificate of incorporation or by-laws
of the Company or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Company or (ii) result in
the creation or imposition of any Lien on any asset of the Company or
any of its Subsidiaries. SECTION 3.03. Binding Effect.
This Agreement constitutes a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of the rights of its creditors generally
and subject to general legal and equitable principles with respect to
the availability of particular remedies. SECTION 3.04.
Financial Information. (a) The consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of January 3, 1993 and the
related consolidated statements of earnings and changes in financial
position for the fiscal year then ended, reported on by Xxxxxx Xxxxxxxx
& Co. and set forth in the Company's annual report on Form 10-K for
the fiscal year ended January 3, 1993, a copy of which has been delivered
to each of the Lenders, fairly present, in conformity with GAAP, the
consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of
operations and changes in financial position for such fiscal year.
(b) The unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of October 3, 1993 and the related
unaudited consolidated statements of earnings and changes in financial
position for the nine months then ended, set forth in the Company's
quarterly report on Form 10-Q for the fiscal quarter ended October 3,
1993, a copy of which has been delivered to each of the Lenders, fairly
present, in conformity with GAAP applied on a basis consistent with
the financial statements referred to in paragraph (a) of this Section
3.04, the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their consolidated results
of operations and changes in financial position for such nine month period
(subject to normal year-end adjustments). SECTION
3.05. Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of the Company threatened against or affecting,
the Company or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official in which there is a
reasonable possibility of a final adverse decision which could
materially adversely affect the business, consolidated financial position or
consolidated results of operations of the Company and its
Consolidated Subsidiaries taken as a whole or which in any manner
draws into question the validity of this Agreement.
SECTION 3.06. Compliance with ERISA. The Company and each ERISA
Affiliate has fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and is in
compliance in all material respects with the presently applicable
provisions of ERISA and the Code relating to the Plans, and has not
incurred any liability to the PBGC or a Plan under Title IV of ERISA.
SECTION 3.07. Taxes. United States Federal income tax returns
of the Company and its Subsidiaries have been examined and closed
through the fiscal year ended January 3, 1988. The Company and its
Subsidiaries have filed all United States Federal income tax returns
and all other material tax returns which are required to be filed by them
and have paid all material taxes due pursuant to such returns or pursuant to
any assessment received by the Company or any Subsidiary which the
Company or any Subsidiary is not disputing in a good faith manner.
The charges, accruals and reserves on the books of the Company and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Company, adequate. SECTION 3.08.
Subsidiaries. Attached hereto as Schedule 3.08 is a schedule which
correctly identifies all Subsidiaries as of the date of this Agreement.
Except as noted on Schedule 3.08, all of the issued and outstanding
shares of the capital stock of each Subsidiary is duly issued and
outstanding, fully paid and non-assessable and except for directors'
qualifying shares and shares issued solely for the purpose of satisfying local
requirements concerning the minimum number of shareholders is owned
by the Company or a Subsidiary free and clear of any mortgage,
pledge, lien or encumbrance. SECTION 3.09.
Representations and Warranties of Each Borrowing Subsidiary. Each
Borrowing Subsidiary shall be deemed by the execution and delivery of
a Borrowing Subsidiary Agreement to have represented and warranted as
of the date thereof as follows: (a) It is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation and is duly qualified to do business
and in good standing in each other jurisdiction in which it owns property
and/or conducts its business and in which failure to be so qualified and
in good standing would have a materially adverse effect on the
business of such Borrowing Subsidiary. (b) The execution,
delivery and performance by it of its Borrowing Subsidiary
Agreement, and the performance by it of the provisions of this Agreement
applicable to it, are within its corporate powers, have been duly
authorized by all necessary corporate action and do not contravene (i)
its charter or by-laws (or the equivalent thereof) or (ii) any law or
regulation or any agreement, judgment, injunction, order, decree or other
instrument binding on or affecting it. (c) No authorization
or approval or other action by, and no notice to or filing with, any
Governmental Authority is required for the due execution, delivery and
performance by it of its Borrowing Subsidiary Agreement or for the
performance by it of the provisions of this Agreement applicable to it,
except for those which have been duly obtained or made and are in full
force and effect. (d) It is not in breach of or default under
any agreement to which it is a party or which is binding on it or any of
its assets to an extent or in a manner which would have a material
adverse effect on its ability to perform its obligations hereunder after taking
into consideration its other financial obligations. (e)
This Agreement is a legal, valid and binding obligation of such
Borrowing Subsidiary enforceable against it in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of the rights of
its creditors generally and subject to general legal and equitable
principles with respect to the availability of particular remedies.
(f) The proceeds of each Loan made to it will be used solely for
general corporate purposes, including the acquisition of new
businesses. SECTION 3.10. Federal Reserve Regulations.
(a) Neither any Borrower nor any Subsidiary is engaged principally,
or as a substantial part of its activities, in the business of extending
credit for the purpose of purchasing or carrying Margin Stock (within
the meaning of Regulation U). (b) No part of the proceeds
of any Loan has been or will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, in any manner or
for any purpose that has resulted or will result in a violation of Regulation
U. SECTION 3.11. Investment Company Act; Public
Utility Holding Company Act. Neither any Borrower nor any
Subsidiary is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935. SECTION 3.12.
Environmental and Safety Matters. (a) With respect to all facilities
owned and operated by the Company and its Subsidiaries, or at which the
Company or any of its Subsidiaries has a leasehold interest, other than any
facilities referred to in (b) below, except as set forth in Schedule
3.12(a) (i) the Company and each Subsidiary is in compliance in all
material respects with all Federal, state, local and other statutes,
ordinances, orders, judgments, rulings and regulations relating to
environmental pollution or to environmental regulation or control or to
employee health or safety (collectively "Environmental Laws") except
where the failure to be in compliance so would not be reasonably
likely, individually or in the aggregate, to result in a Material Adverse
Effect; (ii) neither the Company nor any Subsidiary has received notice
of any material failure so to comply, which non-compliance neither has
been remedied nor is the subject of the Company's good faith efforts to
achieve compliance, except where the failure to be in compliance
would not be reasonably likely, individually or in the aggregate, to result in
a Material Adverse Effect and (iii) the Company is aware of no
events, conditions or circumstances involving environmental pollution
or contamination or employee health or safety that in its judgment
would be reasonably likely to result in a Material Adverse Effect.
(b) With respect to the Federally owned or operated facilities listed
on Schedule 3.12(b) at which the Company and/or its Subsidiaries are
the management and operations contractor or such facilities at which
the Company and/or its Subsidiaries may act as such after the date of
this Agreement, except as set forth in Schedule 3.12(c) neither the
Company nor any of its Subsidiaries has received notice of any claim under
any Environmental Laws which in its judgment would be reasonably
likely to result in a Material Adverse Effect.
ARTICLE IV Conditions of Lending The
obligations of the Lenders to make Loans hereunder are subject to the
satisfaction of the following conditions: SECTION 4.01.
All Borrowings. On the date of each Borrowing: (a) The
Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or Section 2.04, as applicable.
(b) The representations and warranties set forth in Article III
(except in the case of a refinancing that does not increase the
aggregate principal amount of Loans of any Lender outstanding,
the representations set forth in Section 3.05 and 3.12) hereof
shall be true and correct in all material respects on and as of the date of
such Borrowing with the same effect as though made on and as
of such date, except to the extent such representations and
warranties expressly relate to an earlier date. (c) At the
time of and immediately after such Borrowing no Event of
Default or Default shall have occurred and be continuing. Each
Borrowing shall be deemed to constitute a representation and warranty by
the applicable Borrower on the date of such Borrowing as to the
matters specified in para- graphs (b) and (c) of this Section 4.01.
SECTION 4.02. Closing Date. On the Closing Date:
(a) The Administrative Agent shall have received the favorable written
opinion of Xxxxxx Xxxxx, Esq., dated the Closing Date and addressed to
the Lenders and satisfactory to Cravath, Swaine & Xxxxx, counsel for
the Administrative Agent, to the effect set forth in Exhibit D-1 hereto.
(b) The Administrative Agent shall have received (i) a copy
of the certificate of incorporation, including all amendments thereto, of
the Company, certified as of a recent date by the Secretary of State of
its state of incorporation, and a certificate as to the good standing of
the Company as of a recent date from such Secretary of State; (ii) a
certificate of the Clerk or an Assistant Clerk of the Company dated the
Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Company as in effect on the
Closing Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors
of the Company authorizing the execution, delivery and performance of
this Agreement and the Borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate of incorporation referred to in
clause (i) above has not been amended since the date of the last
amendment thereto shown on the certificate of good standing furnished
pursuant to such clause (i) and (D) as to the incumbency and specimen
signature of each officer executing this Agreement or any other document
delivered in connection herewith on behalf of the Company; and (iii) a
certificate of another officer of the Company as to the incumbency and
specimen signature of the Clerk or Assistant Clerk executing the
certificate pursuant to (ii) above. (c) The Administrative
Agent shall have received a certificate, dated the Closing Date and
signed by a Financial Officer of the Company, confirming compliance with
the conditions precedent set forth in paragraphs (b) and (c) of Section
4.01. (d) The Administrative Agent shall have received
evidence of the termination of the Existing Facilities.
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary. On the
first date on which Loans are made to each Borrowing Subsidiary:
(a) The Administrative Agent shall have received the favorable
written opinion of Xxxxxx Xxxxx, Esq., dated the date of such
Loans, addressed to the Lenders and satisfactory to Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent, to the
effect set forth in Exhibit D-2 hereto. (b) Each Lender
shall have received a copy of the Borrowing Subsidiary
Agreement executed by such Borrowing Subsidiary. (c)
Such Loans shall not violate any law, rule or regulation binding on any
of the Lenders. (d) Each Lender shall have received
from the Company an unaudited consolidated balance sheet and
related consolidated statements of earnings and changes in
financial position for the fiscal year most recently ended of such
Borrowing Subsidiary. ARTICLE V
Covenants The Company covenants and agrees with each
Lender and the Administrative Agent that so long as this Agreement
shall remain in effect or the principal of or interest on any Loan, any
Facility Fees or any other amounts payable hereunder shall be unpaid,
unless the Required Lenders shall otherwise consent in writing:
SECTION 5.01. Information. The Company will deliver to each of
the Lenders: (a) as soon as available and in any event
within 90 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of earnings and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year,
all reported on by Xxxxxx Xxxxxxxx & Co. or other independent public
accountants of nationally recognized standing acceptable to the
Required Lenders and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect that such
consolidated financial statements fairly present the financial condition
and results of operations of the Company and the Consolidated
Subsidiaries in accordance with GAAP; (b) as soon as
available and in any event within 45 days after the end of each of the
first three quarters of each fiscal year of the Company, a consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of
the end of such quarter and the related consolidated statements of
earnings and cash flows for such quarter and for the portion of the
Company's fiscal year ended at the end of such quarter, setting forth in each
case in comparative form the figures for the corresponding quarter and
the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, compliance with GAAP and consistency by a Financial
Officer of the Company; (c) simultaneously with the
delivery of each set of financial statements referred to in clauses (a)
and (b) above, a certificate of a Financial Officer of the Company (i)
setting forth in reasonable detail the calculations required to establish
whether the Company was in compliance with the requirements of
Sections 5.06 and 5.07 on the date of such financial statements and (ii)
stating whether there exists on the date of such certificate any Default
and, if any Default then exists, setting forth the details thereof and the
action which the Company is taking or proposes to take with respect
thereto;
(d) forthwith upon the occurrence of any Default, a certificate of
the chief financial officer or the chief accounting officer of the
Company setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and
proxy statements so mailed; (f) promptly upon the filing
thereof, copies of all annual or quarterly reports and upon request by
any Lender copies of all registration statements (other than the exhibits
thereto and any registration statements on Form S-8 or its equivalent) which
the Company shall have filed with the Securities and Exchange
Commission; (g) (i) as soon as possible after, and in any
event within 30 days after the Company or any ERISA Affiliate knows
or has reason to know that, any Reportable Event has occurred that
alone or together with any other Reportable Event could reasonably be
expected to result in liability of the Company to the PBGC in an aggregate
amount exceeding $5,000,000, a statement of a Financial Officer
setting forth details as to such Reportable Event and the action that the
Company proposes to take with respect thereto, together with a copy of
the notice, if any, of such Reportable Event given to the PBGC, (ii)
promptly after receipt thereof, a copy of any notice that the Company or any
ERISA Affiliate may receive from the PBGC relating to the intention
of the PBGC to terminate any Plan or Plans (other than a Plan
maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code Section 414) or to
appoint a trustee to administer any such Plan, (iii) within 10 days after
the due date for filing with the PBGC pursuant to Section 412(n) of the
Code a notice of failure to make a required installment or other
payment with respect to a Plan, a statement of a Financial Officer
setting forth details as to such failure and the action that the Company
proposes to take with respect thereto, together with a copy of any such
notice given to the PBGC and (iv) promptly and in any event within 30
days after receipt thereof by the Company or any ERISA Affiliate from
the sponsor of a Multiemployer Plan, a copy of each notice received
by the Company or any ERISA Affiliate concerning (A) the imposition of
Withdrawal Liability or (B) a determination that a Multiemployer Plan
is, or is expected to be, terminated or in reorganization, both within the
meaning of Title IV of ERISA; and (h) from time to time
such additional information regarding the financial position or
business of the Company as any Lender may reasonably request.
SECTION 5.02. Corporate Existence; Businesses and Properties.
(a) The Company will, and will cause each Borrowing Subsidiary to,
do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its corporate existence.
(b) Except to the extent that failure to do so would not
have a Material Adverse Effect, the Company will, and will cause
each Borrowing Subsidiary to, (i) do or cause to be done all things
necessary to preserve, renew and keep in full force and effect all
rights, licenses, permits and franchises material to the conduct of the
business of the Company and the Subsidiaries, taken as a whole, (ii)
comply with all laws and regulations applicable to it and (iii) conduct
its business in substantially the same manner as heretofore conducted
or as at the time permitted under applicable law. SECTION
5.03. Insurance. The Company will, and will cause each Subsidiary
to, keep its insurable properties adequately insured at all times by
financially sound and reputable insurers, and maintain such other
insurance, to such extent and against such risks, including fire and
other risks insured against by extended coverage, as is customary with
companies similarly situated and in the same or similar businesses.
SECTION 5.04. Litigation and Other Notices. The Company will
give each Lender prompt written notice of the following:
(a) the filing or commencement of, or any written threat or written notice
of intention of any person to file or commence, any action, suit
or proceeding which could reasonably be expected to result in
a Material Adverse Effect; and (b) any development in the
business or affairs of the Company or any Subsidiary that has
resulted in a Material Adverse Effect. SECTION 5.05.
Maintaining Records; Access to Properties and Inspections. The
Company will, and will cause each Subsidiary to, maintain financial
records in accordance with GAAP and, upon reasonable notice, at all
reasonable times, permit (a) any authorized representative designated
by any Lender to discuss the affairs, finances and condition of the
Company and the Subsidiaries with a Financial Officer of the
Company and such other officers as the Company shall deem appropriate
and (b) any authorized representative designated by the Administrative
Agent or the Required Lenders to visit and inspect the properties of the
Company and of any Subsidiary. SECTION 5.06. Fixed
Charge Coverage. The Company will not permit the ratio of (a)
Consolidated EBIT to (b) Consolidated Net Interest Expense for any period
of four consecutive fiscal quarters ending on the last day of any fiscal
quarter to be less than 5:1. SECTION 5.07. Net Debt
to Capitalization Ratio. The Company will not permit on any date the
ratio of (a) Consolidated Net Indebtedness on such date to (b) the sum
of (i) Shareholders' Equity on such date and (ii) Consolidated Net
Indebtedness on such date to be greater than 0.35:1.00.
SECTION 5.08. Negative Pledge. Neither the Company nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien
securing Indebtedness on any asset now owned or hereafter acquired
by it, except: (a) Liens on all or part of the assets of
Consolidated Subsidiaries securing Indebtedness owing by
Consolidated Subsidiaries to the Company and Consolidated
Subsidiaries; (b) mortgages on real property or security
interests in personal property securing Indebtedness of the Company
and Consolidated Subsidiaries in an aggregate amount not exceeding
ten percent (10%) of the consolidated total assets of the Company and
the Consolidated Subsidiaries; (c) Liens to secure taxes,
assessments and other governmental charges or claims for labor,
material or supplies to the extent that payment thereof shall not at the time
be required to be made in accordance with Section 3.07 hereof;
(d) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old
age, pension or other social security obligations; (e)
Liens in respect of judgments or awards not exceeding $1,000,000 in
the aggregate at any time, and any other Liens with respect to which the
execution or enforcement thereof is being effectively stayed and the
claims secured thereby are being contested in good faith by
appropriate proceedings; (f) Liens of carriers,
warehousemen, mechanics and materialmen, and other like Liens, in
existence less than 120 days from the date of creation thereof;
(g) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under
leases to which the Company or a Consolidated Subsidiary is a party,
and other similar encumbrances none of which in the opinion of the
Company interferes materially with the use of the property in the ordinary
conduct of the business of the Company and the Consolidated
Subsidiaries; and similar encumbrances on interests in real estate
located outside the United States, which defects do not individually or
in the aggregate have a material adverse effect on the business of the
Company individually or of the Company and the Consolidated
Subsidiaries on a consolidated basis; and (h)
notwithstanding the provisions of subsection (b) hereof, security
interests in Margin Stock if, and to the extent that, the value of all such
Margin Stock owned by the Company and its Consolidated
Subsidiaries exceeds 25% of the value of the total assets of the
Company and its Consolidated Subsidiaries subject to this Section 5.08.
SECTION 5.09. Consolidations, Mergers and Sales of Assets.
(a) The Company will not (i) consolidate or merge with or into any
other person unless (A) the Company shall be the surviving entity and
(B) immediately thereafter no Default or Event of Default shall have
occurred and be continuing or (ii) sell, lease or otherwise transfer all
or any substantial part of its assets to any other person. The Company will
not sell, lease or otherwise transfer any of its assets to any other
person except for full and adequate consideration. (b)
No Borrowing Subsidiary will (i) consolidate or merge with or into any
other person unless (A) if the surviving entity shall be other than such
Borrowing Subsidiary, (x) such surviving entity or the Company shall
have assumed in writing all obligations of such Borrowing Subsidiary
relating to this Agreement and (y) such surviving entity shall be 100%
owned by the Company and (B) no Default or Event of Default shall
have occurred and be continuing either before or immediately after such
consolidation or merger or (ii) sell, lease or otherwise transfer all or
any substantial part of its assets to any other person. No Borrowing
Subsidiary will sell, lease or otherwise transfer any of its assets to any
other person except for full and adequate consideration.
ARTICLE VI Events of Default
In case of the happening of any of the following events (each an
"Event of Default"): (a) any representation or
warranty made or deemed made in or in connection with the
execution and delivery of this Agreement or the Borrowings hereunder or
any representation, warranty, statement or information contained
in any report, certificate, financial statement or other instrument
furnished in connection with this Agreement shall prove to
have been incorrect in any material respect when so made,
deemed made or furnished; (b) default shall be made in the
payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment thereof or by acceleration thereof or
otherwise; (c) default shall be made in the payment of any
interest on any Loan or any Facility Fee or any other amount
(other than an amount referred to in paragraph (b) above) due
hereunder, when and as the same shall become due and payable, and
such default shall continue unremedied for a period of three Business
Days; (d) default shall be made in the due observance or
performance of any covenant, condition or agreement contained
in Sections 5.02 or 5.06 through 5.09;
(e) default shall be made in the due observance or performance
of any covenant, condition or agreement contained herein
(other than those specified in paragraphs (b), (c) or (d) above)
and such default shall continue unremedied for a period of 10
days after notice thereof from the Administrative Agent or any Lender
to the Company; (f) the Company or any Subsidiary
shall (i) fail to pay any principal or interest, regardless of
amount, due in respect of any Indebtedness in an aggregate
principal amount in excess of $15,000,000, when and as the same shall
become due and payable, or (ii) fail to observe or perform any
other term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause (ii) is to
cause, or to permit the holder or holders of such Indebtedness
or a trustee on its or their behalf (with or without the giving of
notice, the lapse of time or both) to cause, such Indebtedness to
become due prior to its stated maturity; (g) an involuntary
proceeding shall be commenced or an involuntary petition shall
be filed in a court of competent jurisdiction seeking (i) relief in respect of
the Company or any Subsidiary, or of a substantial part of the
property or assets of the Company or a Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter
amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the
Company or any Subsidiary or for a substantial part of the
property or assets of the Company or a Subsidiary or (iii) the
winding up or liquidation of the Company or any Subsidiary;
and such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing
shall be entered; (h) the Company or any Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described
in paragraph (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Subsidiary or for a
substantial part of the property or assets of the Company or any
Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing; (i) one or more
final and nonappealable judgments for the payment of money in
an aggregate amount in excess of $5,000,000 shall be rendered against the
Company, any Subsidiary or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or
any action shall be legally taken by a judgment creditor to levy
upon assets or properties of the Company or any Subsidiary to enforce any
such final and nonappealable judgment or judgments aggregating
in excess of $5,000,000; (j) a Reportable
Event or Reportable Events, or a failure to make a required
installment or other payment (within the meaning of Section 412(n)(l) of the
Code), shall have occurred with respect to any Plan or Plans
that reasonably could be expected to result in liability of the
Company to the PBGC or to a Plan in an aggregate amount
exceeding $5,000,000 and, within 30 days after the reporting of
any such Reportable Event to the Administrative Agent, the Administrative
Agent shall have notified the Company in writing that (i) the
Required Lenders have made a determination that, on the basis
of such Reportable Event or Reportable Events or the failure to
make a required payment, there are reasonable grounds (A) for the
termination of such Plan or Plans by the PBGC, (B) for the appointment
by the appropriate United States District Court of a trustee to
administer such Plan or Plans or (C) for the imposition of a
lien in favor of a Plan and (ii) as a result thereof an Event of
Default exists hereunder; or a trustee shall be appointed by a United
States District Court to administer any such Plan or Plans; or the PBGC
shall institute proceedings to terminate any Plan or Plans;
(k) (i) the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan, (ii)
the Borrower or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal Liability or is not in
fact contesting such Withdrawal Liability in a timely and
appropriate manner and (iii) the amount of the Withdrawal
Liability specified in such notice, when aggregated with all
other amounts required to be paid to Multiemployer Plans in connection
with Withdrawal Liabilities (determined as of the date or dates
of such notification), exceeds $5,000,000 or requires payments
exceeding $1,000,000 in any year; (1) the Company or any
ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization
or is being terminated, within the meaning of Title IV of ERISA, if
solely as a result of such reorganization or termination the
aggregate annual contributions of the Company and its ERISA
Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been or will be
increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan
years by an amount exceeding $1,000,000; or (m) a
Change in Control shall occur; then, and in every such event (other than an
event with respect to the Company described in paragraph (g) or
(h) above), and at any time thereafter during the continuance of
such event, the Administrative Agent, at the request of the Required
Lenders, shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i)
terminate forthwith the Commitments and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued
Facility Fees and all other liabilities of the Borrowers accrued hereunder,
shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby
expressly waived anything contained herein to the contrary
notwithstanding; and, in any event with respect to the Company described in
paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and any unpaid accrued Facility Fees and all
other liabilities of the Borrowers accrued hereunder shall
automatically become due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby
expressly waived anything contained herein to the contrary
notwithstanding. ARTICLE VII
Guarantee The Company
unconditionally and irrevocably guarantees the due and punctual
payment and performance, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise,
of the Guaranteed Obligations. The Company further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in
part, without notice or further assent from it and that it will remain bound
upon its guarantee notwithstanding any extension or renewal of any
Guaranteed Obligations. The Company waives
presentment to, demand of payment from and protest to the Borrowing
Subsidiaries of any of the Guaranteed Obligations, and also waives notice
of acceptance of its guarantee and notice of protest for nonpayment. The
obligations of the Company hereunder shall not be affected by (a) the
failure of any Lender or the Administrative Agent to assert any claim
or demand or to enforce any right or remedy against the Borrowing
Subsidiaries under the provisions of this Agreement or otherwise; (b)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Agreement, any guarantee or any other agreement; or
(c) the failure of any Lender or the Administrative Agent to exercise
any right or remedy against any other guarantor of the Guaranteed
Obligations.
The Company further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any
right to require that any resort be had by the Administrative Agent or
any Lender to any security, if any, held for payment of the Guaranteed
Obligations or to any balance of any deposit account or credit on its books,
in favor of the Borrowing Subsidiaries or any other person.
The obligations of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration
or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations
of the Company hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any
Lender to assert any claim or demand or to enforce any remedy under
this Agreement, any guarantee or any other agreement, by any waiver or
modification of any provision of any thereof, by any default, failure or
delay, wilful or otherwise, in the performance of the Guaranteed
Obligations, or by any other act or omission which may or might in any
manner or to any extent vary the risk of the Company or otherwise
operate as a discharge of the Company as a matter of law or equity.
To the extent permitted by applicable law, the Company waives any
defense based on or arising out of any defense available to the
Borrowing Subsidiaries, including any defense based on or arising out
of any disability of the Borrowing Subsidiaries, or the unenforceability
of the Guaranteed Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrowing Subsidiaries,
other than final payment in full of the Guaranteed Obligations. The
Administrative Agent and the Lenders may, at their election, foreclose
on any security held by one or more of them by one or more judicial or
non-judicial sales, or exercise any other right or remedy available to them
against the Borrowing Subsidiaries, or any security without affecting
or impairing in any way the liability of the Company hereunder except
to the extent the Guaranteed Obligations have been fully and finally
paid. The Company waives any defense arising out of any such
election even though such election operates to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of the
Company against any Borrowing Subsidiary or any security.
The Company further agrees that its guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time payment,
or any part thereof, of principal of or interest on any Guaranteed
Obligation is rescinded or must otherwise be restored by any Lender
upon the bankruptcy or reorganization of any Borrowing Subsidiary or
otherwise. In furtherance of the foregoing and not in
limitation of any other right hich the Administrative Agent or any
Lender may have at law or in equity against the Company by virtue
hereof, upon the failure of any Borrowing Subsidiary to pay any Guaranteed
Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, the
Company hereby promises to and will, upon receipt of written demand
by the Administrative Agent or any Lender, forthwith pay or cause to
be paid to the Administrative Agent or such Lender in cash the amount of
such unpaid Guaranteed Obligation. Upon payment by
the Company of any sums to the Administrative Agent or any Lender,
as provided above, all rights of the Company against the other Borrowers
arising as a result thereof by way of right of subrogation or otherwise
shall in all respects be subordinated and junior in right of payment to
the prior indefeasible payment in full of all the Guaranteed Obligations to
the Administrative Agent and the Lenders; provided, however, that to the
extent any right of subrogation that the Company might have pursuant to this
Agreement or otherwise would constitute the Company a "creditor" of any
Borrower within the meaning of Section 547 of Title 11 of the United States
Code as now in effect or hereafter amended, or any comparable provision
of any successor statute, the Company hereby irrevocably waives and
releases such right of subrogation. ARTICLE
VIII The Administrative Agent
In order to expedite the transactions contemplated by this Agreement,
Chemical Bank is hereby appointed to act as Administrative Agent on
behalf of the Lenders. Each of the Lenders hereby irrevocably
authorizes the Administrative Agent to take such actions on behalf of
such Lender or holder and to exercise such powers as are specifically
delegated to the Administrative Agent by the terms and provisions hereof,
together with such actions and powers as are reasonably incidental
thereto. The Administrative Agent is hereby expressly authorized by
the Lenders, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders all payments of principal of and interest on
the Loans and all other amounts due to the Lenders hereunder, and
promptly to distribute to each Lender its proper share of each payment
so received; (b) to give notice on behalf of each of the Lenders to the
Borrowers of any Event of Default of which the Administrative Agent
has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute promptly to each Lender copies of all notices,
financial statements and other materials delivered by the Borrowers
pursuant to this Agreement as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable as such for any action
taken or omitted by any of them except for its or his or her own gross
negligence or willful misconduct, or be responsible for any statement,
warranty or representation herein or the contents of any document delivered
in connection herewith, or be required to ascertain or to make any
inquiry concerning the performance or observance by the Borrowers of
any of the terms, conditions, covenants or agreements contained in this
Agreement. The Administrative Agent shall not be responsible to the
Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or other instruments or agreements.
The Administrative Agent may deem and treat the Lender that makes
any Loan as the holder of the indebtedness resulting therefrom for all
purposes hereof until it shall have received notice from such Lender, given
as provided herein, of the transfer thereof. The Administrative Agent
shall in all cases be fully protected in acting, or refraining from acting,
in accordance with written instructions signed by the Required
Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on
all the Lenders. The Administrative Agent shall, in the absence of
knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to
have been signed or sent by the proper person or persons. Neither the
Administrative Agent nor any of its directors, officers, employees or agents
shall have any responsibility to the Borrowers on account of the failure
of or delay in performance or breach by any other Lender of any of its
obligations hereunder or to any Lender on account of the failure of or
delay in performance or breach by any other Lender or the Borrowers
of any of their respective obligations hereunder or in connection herewith.
The Administrative Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to rely upon the
advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative
Agent shall be under no duty to take any discretionary action permitted
to be taken by it pursuant to the provisions of this Agreement unless it
shall be requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent
may resign at any time by notifying the Lenders and the Company.
Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Administrative Agent reasonably acceptable to the
Company. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30
days after the retiring Administrative Agent gives notice of its
resignation, then, the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank
with an office in New York, New York, having a combined capital and
surplus of at least $500,000,000 or an Affiliate of any such bank.
Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After the
Administrative Agent's resignation hereunder, the provisions of this
Article and Section 9.05 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
With respect to the Loans made by it hereunder, the
Administrative Agent in its individual capacity and not as
Administrative Agent shall have the same rights and powers as any
other Lender and may exercise the same as though it were not the
Administrative Agent, and the Administrative Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any kind
of business with the Borrowers or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent. Each
Lender agrees (i) to reimburse the Administrative Agent, on demand,
in the amount of its pro rata share (based on its Commitment hereunder or, if
the Commitments shall have been terminated, the amount of its
outstanding Loans) of any out-of-pocket expenses incurred for the
benefit of the Lenders by the Administrative Agent, including
reasonable counsel fees and compensation of agents paid for services
rendered on behalf of the Lenders, which shall not have been
reimbursed by the Borrowers and (ii) to indemnify and hold harmless
the Administrative Agent and any of its directors, officers, employees
or agents, on demand, in the amount of such pro rata share, from and against
any and all liabilities, taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or
asserted against it in its capacity as the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted
by it under this Agreement to the extent the same shall not have been
reimbursed by the Borrowers; provided that no Lender shall be liable
to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or
willful misconduct of the Administrative Agent or any of its directors,
officers, employees or agents. Each Lender agrees that any allocation
made in good faith by the Administrative Agent of expenses or other
amounts referred to in this paragraph between this Agreement and the
Facility B Credit Agreement shall be conclusive and binding for all
purposes. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement
or any related agreement or any document furnished hereunder or
thereunder.
ARTICLE IX
Miscellaneous SECTION 9.01. Notices. Except as
otherwise expressly provided herein, notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed or sent by telecopy,
as follows: (a) if to any Borrower, to EG&G, Inc., 00
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention of
Treasurer, (Telecopy No. 617-431-4279); (b) if to the
Administrative Agent, to it at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxx Xxxxxxx, (Telecopy No.
212-270-2625); and (c) if to a Lender, to it at its address
(or telecopy number) set forth in Schedule 2.01 or in the
Assignment and Acceptance pursuant to which such Lender
became a party hereto. All notices and other communications
given to any party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service or sent by telecopy to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this
Section 9.01. SECTION 9.02. Survival of Agreement.
All covenants, agreements, representations and warranties made by the
Borrowers herein and in the certificates or other instruments prepared
or delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the Lenders and shall survive the
making by the Lenders of the Loans regardless of any investigation
made by the Lenders or on their behalf, and shall continue in full force
and effect as long as the principal of or any accrued interest on any
Loan or any Facility Fee or any other amount payable under this Agreement
is outstanding and unpaid or the Commitments have not been
terminated. SECTION 9.03. Binding Effect. This
Agreement shall become effective when it shall have been executed by
the Company and the Administrative Agent and when the
Administrative Agent shall have received copies hereof (telecopied or
otherwise) which, when taken together, bear the signature of each
Lender, and thereafter shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except
that the Borrowers shall not have the right to assign any rights hereunder or
any interest herein without the prior consent of all the Lenders.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of any party that
are contained in this Agreement shall bind and inure to the benefit of
its successors and assigns. (b) Each Lender may assign to
one or more assignees all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided, however, that
(i) except in the case of an assignment to a Lender or a domestic
Affiliate of a Lender, the Company must give its prior written consent
to such assignment (which consent shall not be unreasonably
withheld), (ii) the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than
$10,000,000, (iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance,
and a processing and recordation fee of $3,000 and (iv) the assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date
specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.12,
2.14, 2.19 and 9.05, as well as to any Facility Fees accrued for its
account hereunder and not yet paid)). Notwithstanding the foregoing, any
Lender assigning its rights and obligations under this Agreement may
retain any Competitive Loans made by it outstanding at such time, and
in such case shall retain its rights hereunder in respect of any Loans so
retained until such Loans have been repaid in full in accordance with
this Agreement. (c) By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the
assignee thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) such assigning Lender
warrants that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, (ii) except as set
forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement,
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto or the financial condition of the
Borrowers or the performance or observance by the Borrowers of any
obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants
that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of
this Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.01 and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together
with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement are required to be
performed by it as a Lender. (d) The Administrative
Agent shall maintain at one of its offices in the City of New York a
copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the
Commitment of, and the principal amount of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive in the absence of
manifest error and the Borrowers, the Administrative Agent and the Lenders
may treat each person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by each
party hereto, at any reasonable time and from time to time upon
reasonable prior notice. (e) Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning
Lender and an assignee together with an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in
paragraph (b) above and, if required, the written consent of the
Company to such assignment, the Administrative Agent shall (i) accept
such Assignment and Acceptance and (ii) record the information
contained therein in the Register. (f) Each Lender may
sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans owing to it); provided,
however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii)
each participating bank or other entity shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.12, 2.14 and 2.19 to
the same extent as if it was the selling Lender (but limited to the
amount that could have been claimed by the selling Lender had it
continued to hold the interest of such participating bank or other
entity), except that all claims made pursuant to such Sections shall be made
through such selling Lender, and (iv) the Borrowers, the
Administrative Agent and the other Lenders shall continue to deal
solely and directly with such selling Lender in connection with such
Lender's rights and obligations under this Agreement, and such selling
Lender shall retain the sole right to enforce the obligations of the
Borrowers relating to the Loans and to approve any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable
hereunder or the amount of principal of or the rate at which interest is
payable on the Loans, extending any scheduled principal payment date
or date fixed for the payment of interest on the Loans or changing or
extending the Commitments). (g) Any Lender or
participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section, disclose to
the assignee or participant or proposed assignee or participant any
information relating to the Borrowers furnished to such Lender;
provided that, prior to any such disclosure, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of any such information.
(h) The Borrowers shall not assign or delegate any rights and
duties hereunder without the prior written consent of all Lenders.
(i) Any Lender may at any time pledge all or any portion of its
rights under this Agreement to a Federal Reserve Bank; provided that
no such pledge shall release any Lender from its obligations hereunder
or substitute any such Bank for such Lender as a party hereto. In order
to facilitate such an assignment to a Federal Reserve Bank, each
Borrower shall, at the request of the assigning Lender, duly execute and
deliver to the assigning Lender a promissory note or notes evidencing
the Loans made to such Borrower by the assigning Lender hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrowers
agree, jointly and severally, to pay the fees and disbursements of
counsel for the Administrative Agent in connection with entering into
this Agreement and in connection with any amendments, modifications
or waivers of the provisions hereof, and agree, jointly and severally, to pay
the reasonable out-of-pocket expenses incurred by the Administrative
Agent or any Lender in connection with the enforcement or protection
of their rights in connection with this Agreement or the Loans made
hereunder, including the reasonable fees and disbursements of counsel
for the Administrative Agent or any Lender. (b) The
Borrowers agree, jointly and severally, to indemnify the
Administrative Agent, each Lender, each of their Affiliates and the
directors, officers, employees and agents of the foregoing (each such
person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against any Indemnitee arising out of
(i) the execution or delivery of this Agreement or any agreement or
instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
transactions contemplated thereby, (ii) the use of the proceeds of the
Loans or (iii) any claim, litigation, investigation or proceeding relating
to any of the foregoing, whether or not any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are finally determined by a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee or from such Indemnitee's violation of
the Federal securities laws prohibiting xxxxxxx xxxxxxx. (c)
The provisions of this Section shall remain operative and in full force and
effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment
of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf
of the Administrative Agent or any Lender. All amounts due under this
Section shall be payable on written demand therefor.
SECTION 9.06. Applicable Law. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.07. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent and the Lenders
hereunder are cumulative and are not exclusive of any rights or
remedies which they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure therefrom
shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given. No notice or demand on any Borrower or any Subsidiary in any
case shall entitle such party to any other or further notice or demand in
similar or other circumstances. (b) Neither this
Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered
into by the Borrowers and the Required Lenders; provided, however,
that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date
for the payment of any interest on any Loan, or waive or excuse any
such payment or any part thereof, or decrease the rate of interest on any
Loan, without the prior written consent of each Lender affected
thereby, (ii) increase the Commitment or decrease the Facility Fee of
any Lender or extend any date for payment thereof without the prior
written consent of such Lender, (iii) amend or modify the provi- sions
of Section 2.15 or Section 9.04(h), the provisions of this Section or the
definition of the "Required Lenders," or (iv) release the Company from
any of its obligations under Article VII hereof without the prior written
consent of each Lender; provided further, however, that no such
agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent hereunder without the prior written consent of
the Administrative Agent. Each Lender shall be bound by any waiver,
amendment or modification authorized by this Section and any consent
by any Lender pursuant to this Section shall bind any assignee of its
rights and interests hereunder. SECTION 9.08. Entire
Agreement. This Agreement constitutes the entire contract among the
parties relative to the subject matter hereof. Any previous agreement
among the parties with respect to the subject matter hereof is superseded by
this Agreement. Nothing in this Agreement, expressed or implied, is
intended to confer upon any party other than the parties hereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement. SECTION 9.09. Severability. In the event any
one or more of the provisions contained in this Agreement should be
held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions. SECTION 9.10. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together
shall constitute but one contract, and shall become effective as provided in
Section 9.03. SECTION 9.11. Headings. Article and
Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement. SECTION 9.12. Right of
Setoff. If an Event of Default shall have occurred and be continuing,
each Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for
the credit or account of the Company and any Borrowing Subsidiary
now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured.
Each Lender agrees promptly to notify the Company after such setoff
and application made by such Lender, but the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of setoff) which
such Lender may have. SECTION 9.13. Jurisdiction;
Consent to Service of Process. (a) Each Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law.
Subject to the foregoing and to paragraph (b) below, nothing in this
Agreement shall affect any right that any party hereto may otherwise
have to bring any action or proceeding relating to this Agreement against
any other party hereto in the courts of any jurisdiction. (b)
Each Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New
York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in
any such court. (c) Each party to this Agreement
irrevocably consents to service of process in the manner provided for
notices in Section 9.01. Nothing in this Agreement will affect the right
of any party to this Agreement to serve process in any other manner
permitted by law. SECTION 9.14. Waiver of Jury
Trial. Each party hereto hereby waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect of
any litigation directly or indirectly arising out of, under or in connection
with this Agreement. Each party hereto (a) certifies that no
representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
and other parties hereto have been induced to enter into this Agreement
by, among other things, the mutual waivers and certification in this
Section. SECTION 9.15. Addition of Borrowing
Subsidiaries. Each wholly owned Subsidiary of the Company which
shall deliver to the Administrative Agent a Borrowing Subsidiary
Agreement executed by such Subsidiary and the Company shall, upon such
delivery and without further act, become a party hereto and a Borrower
hereunder with the same effect as if it had been an original party to this
Agreement.
SECTION 9.16. Confidentiality. Each Lender and the
Administrative Agent agree to keep confidential the Information (as
defined below), except that any such Lender and the Administrative
Agent shall be permitted to disclose Information (a) to such of its
officers, directors, employees, agents and representatives as need to know
such Information; (b) to the extent required by applicable laws and
regulations or by any subpoena or similar legal process, including with
respect to the enforcement of this Agreement, provided that such
Lender and the Administrative Agent shall use reasonable efforts to
notify the Company of such prospective disclosure a reasonable time prior
to any such disclosure and shall take such actions reasonably requested
by the Company to assist the Company in obtaining a protective order
or confidential treatment with respect to such Information (it being
understood that failure to give such notice after having made any such
reasonable efforts shall not result in any liability hereunder to such Lender
or the Administrative Agent, as the case may be); (c) to the extent
requested by any bank regulatory authority; (d) to the extent such
Information (i) becomes publicly available other than as a result of a
breach of this Agreement, (ii) becomes available to such Lender or the
Administrative Agent on a non-confidential basis from a source other than
the Company and its Affiliates or (iii) was available to such Lender or
the Administrative Agent on a non-confidential basis prior to its
disclosure to such Lender or the Administrative Agent by the Company
or its Affiliates; (e) to any actual or prospective assignee or participant in
any rights of such Lender or the Administrative Agent under this
Agreement, provided that such assignee or participant delivers to the
Administrative Agent or such Lender, as applicable, a confidentiality
letter containing substantially the undertakings set forth in this Section 9.16
and (f) to the extent the Company shall have consented to such disclosure
in writing. As used in this Section 9.16, "Information" shall mean any
materials, documents and information (other than annual reports,
prospectuses, proxy statements and other materials distributed to the
Company's shareholders) that the Company or any of its Subsidiaries may
have furnished or may hereafter furnish to the Administrative Agent or any
Lender in connection with Sections 4.03(d), 5.01, 5.04 and 5.05 of this
Agreement. SECTION 9.17. Collateral. Each of the
Lenders represents to each of the other Lenders that it in good faith is
not relying upon any Margin Stock (as defined in Regulation U) as
collateral in the extension or maintenance of the credit provided for in this
Agreement. SECTION 9.18. Interest Rate Limitation.
Notwith-standing anything herein to the contrary, if at any time the
applicable interest rate, together with all fees and charges which are
treated as interest under applicable law (collectively the "Charges"), as
provided for herein or in any other document executed in connection
herewith, or otherwise contracted for, charged, received, taken or
reserved by any Lender, shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, all
Charges payable to such Lender shall be limited to the Maximum Rate.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement
to be duly executed by their respective authorized officers as of the
day and
year first above
written.
EG&G, INC.,
by
/s/ Xxxx X. Xxxxxxxxx, XX
Name: Xxxx X. Xxxxxxxxx, XX
Title: Corporate Controller Acting Chief Financial
Officer
CHEMICAL BANK, individually and as Administrative
Agent,
by
/s/ Xxxx X. Xxxxx, III
Name: Xxxx X. Xxxxx, III
Title: Managing Director
THE FIRST NATIONAL
BANK OF BOSTON,
by
/s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
DRESDNER BANK A.G., NEW YORK
BRANCH AND GRAND CAYMAN BRANCH,
by
/s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Vice President
by
/s/ X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title: First Vice President
THE NORTHERN TRUST COMPANY,
by
/s/ Xxxx Werd
Name: Xxxx Werd
Title: Vice President
ROYAL BANK OF CANADA,
by
/s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Manager
SOCIETE GENERALE,
by
/s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: Vice President
WACHOVIA BANK OF GEORGIA,
N.A.,
by
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
EXHIBIT A-1
FORM OF
COMPETITIVE BID REQUEST
Chemical Bank, as Administrative Agent for
the Lenders referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[Date]
Attention: Xxx Xxxxxxx
Ladies and Gentlemen:
The undersigned, EG&G, Inc., a Massachusetts corporation (the
"Company"), refers to the [3-Year] [364-Day] Competitive Advance and
Revolving Credit Facility Agreement dated as of March 21, 1994 (as
amended, modified, extended or restated from time to time,
collectively, the "Credit Agreement"), among the Company, the
Lenders named therein and Chemical Bank, as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement. The Company hereby gives you notice pursuant to
Section 2.03(a) of the Credit Agreement that it requests a
Competitive Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Competitive
Borrowing is requested to be made:
(A) Interest Rate Basis ____________ ____________ ___________
(B) Date of Competitive Borrowing
(which is a Business Day) ____________ ____________ ___________
(C) Interest Period and the last
day thereof ____________ ____________ ___________
(D) Principal Amount of
Competitive Borrowing $____________$____________$___________
Upon acceptance of any or all of the Loans offered by
the Lenders in response to this request, the Company shall be
deemed to affirm as of such date the representations and warranties
made in the Credit Agreement to the extent specified in Article IV
thereof.
Very truly yours,
EG&G, INC.
by
___________________________
Title: [Responsible
Officer]
Copy to:
Chemical Bank Agency Services Corporation
Grand Central Tower
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
EXHIBIT A-2
FORM OF
COMPETITIVE BID INVITATION
[Name of Lender]
[Address]
[Date]
Ladies and Gentlemen:
Reference is made to the [3-Year] [364-Day] Competitive Advance and
Revolving Credit Facility Agreement dated as of March 21, 1994 (as amended,
modified, extended or restated from time to time, collectively, the "Credit
Agreement"), among EG&G, Inc., a Massachusetts corporation (the
"Company"), the Lenders named therein and Chemical Bank, as Administrative
Agent. Capitalized terms used herein and not otherwise defined herein shall
have
the meanings assigned to such terms in the Credit Agreement. The Company made a
Competitive Bid Request on [date], 19 , pursuant to Section 2.03(a) of the
Credit
Agreement, and in that connection you are invited to submit a Competitive Bid by
[Date]/[Time]. Your Competitive Bid must comply with Section 2.03(b) of the
Credit Agreement and the terms set forth below on which the Competitive Bid
Request was made:
(A) Interest Rate Basis
(B) Date of Competitive Borrowing
(C) Interest Period and the last
day thereof
(D) Principal Amount of
Competitive Borrowing $
Very truly yours,
CHEMICAL BANK, as
Administrative Agent,
by
_____________________________________
Title:
EXHIBIT A-3
FORM OF
COMPETITIVE BID
Chemical Bank, as Administrative Agent
for the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[Date]
Attention: Xxx Xxxxxxx
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the [3-Year]
[364-Day] Competitive Advance and Revolving Credit Facility
Agreement dated as of March 21, 1994 (as amended, modified,
extended or restated from time to time, collectively, the "Credit
Agreement"), among EG&G, Inc., a Massachusetts corporation (the
"Company"), the Lenders named therein and Chemical Bank, as
Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The undersigned hereby makes a
Competitive Bid pursuant to Section 2.03(b) of the Credit Agree-
ment, in response to the Competitive Bid Request made by the
Company on [date], 19 , and in that connection sets forth below the
terms on which such Competitive Bid is made:
(A) Interest Period and last
day thereof __________ ___________ _____________
(B) Principal Amount $__________ $___________ $_____________
(C) Competitive Bid Rate __________ ___________ _____________
The undersigned hereby confirms that it is prepared, subject
to the conditions set forth in the Credit Agreement, to extend
credit to the Company upon acceptance by the Company of this bid in
accordance with Section 2.03(d) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER],
by
________________________________
Title:
Copy to:
Chemical Bank Agency Services Corporation
Grand Central Tower
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
EXHIBIT A-4
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
[Date]
Chemical Bank, as Administrative Agent
for the Lenders referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Ladies and Gentlemen:
The undersigned, EG&G, Inc. (the "Company"), refers to
the [3-Year] [364-Day] Competitive Advance and Revolving
Credit Facility Agreement dated as of March 21, 1994 (as amended,
modified, extended or restated from time to time, collectively, the
"Credit Agreement"), among the Company, the Lenders named
therein and Chemical Bank, as Administrative Agent.
In accordance with Section 2.03(c) of the Credit Agreement, we
have received a summary of bids in connection with our Competitive
Bid Request dated ___________ and in accordance with Section
2.03(d) of the Credit Agreement, we hereby accept the following
bids for maturity on [date]:
Principal Amount
$
$
Fixed Rate/Margin
[%]/[+/-. %]
Lender
We hereby reject the following bids:
Principal Amount
$
$
Fixed Rate/Margin
[%]/[+/-. %]
Lender
The $ should be deposited in Chemical Bank
account number [ ] on [date].
Very truly yours,
EG&G, INC.
by
Name:
Title:
Copy To:
Chemical Bank Agency Services Corporation
Grand Central Tower
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
EXHIBIT A-5
FORM OF
STANDBY BORROWING REQUEST
Chemical Bank, as Administrative Agent
for the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[Date]
Attention: Xxx Xxxxxxx
Ladies and Gentlemen:
The undersigned, EG&G, Inc., a Massachusetts corporation (the "Company"),
refers to the [3-Year] [364-Day] Competitive Advance and Revolving Credit
Facility Agreement dated as of March 21, 1994 (as amended, modified, extended or
restated from time to time, collectively, the "Credit Agreement"), among the
Company, the Lenders named therein and Chemical Bank, as Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The Company hereby
gives you notice pursuant to Section 2.04 of the Credit Agreement that it
requests a
Standby Borrowing under the Credit Agreement, and in that connection sets forth
below the terms on which such Standby Borrowing is requested to be made:
(A) Date of Standby Borrowing
(which is a Business Day) _________________________________
(B) Principal Amount of
Standby Borrowing $_________________________________
(C) Interest rate basis _________________________________
(D) Interest Period and the
last day thereof _________________________________
Upon acceptance of any or all of the Loans made by the Lenders in response
to this request, the Company shall be deemed to have represented and warranted
(but only to the extent required by Section 4.01 of the Credit Agreement) that
the conditions to lending specified in Sec- tion 4.01(b) and (c) of the Credit
Agreement have been satisfied.
Very truly yours,
EG&G, INC.
by
___________________________
Title: [Responsible Officer]
Copy to:
Chemical Bank Agency Services Corporation
Grand Central Tower
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
EXHIBIT B
ADMINISTRATIVE QUESTIONNAIRE
EG&G, INC.
Please accurately complete the following information and return via FAX to the
attention of Xxxxxx Xxxxxxx at Chemical Bank Agency Services Corporation as
soon as possible.
FAX Number: 000-000-0000
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
GENERAL INFORMATION - DOMESTIC RATE LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
Institution Name:
Street Address:
City, State, Zip Code:
CREDIT CONTACTS/NOTIFICATION METHODS:
Primary Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
Backup Credit Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
TAX WITHHOLDING:
UNITED STATES
Non-Resident Alien or Foreign Corporation or Other Foreign Entity
__________ YES __________ NO
If yes, please enclose Form 4224, 1001 or W-8. If no, please enclose
Form W-9.
Tax ID Number _________________________________
CONTACTS/NOTIFICATION METHODS: ADMINISTRATIVE CONTACTS -
BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:
Street Address:
City, State, Zip Code:
Phone Number:
FAX Number:
Telex & Answer Back:
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
Routing Transit/ABA number of Bank where funds are to be transferred:
Name of Account, if applicable:
Account Number:
Additional Information:
BID LOAN NOTIFICATIONS:
Contact:
Street Address:
City, State, Zip Code:
Phone Number:
Fax Number:
MAILINGS:
Please specify who should receive financial information:
Name:
Street Address:
City, State, Zip Code:
It is very important that all of the above information is accurately filled in
and returned promptly.If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number
and we will FAX them a copy of the questionnaire. If you have any questions,
please call Xxxxxx Xxxxxxx at 000-000-0000, telecopy 212-622-0002.
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the [3-Year] [364-Day] Competitive Advance and
Revolving Credit Facility Agreement dated as of March 21, 1994, (as amended,
modified, extended or restated from time to time, collectively, the "Credit
Agreement"), among EG&G, Inc., a Massachusetts corporation, the Lenders named
therein and Chemical Bank, as Administrative Agent. Terms defined in the Credit
Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the Assignee,
and the Assignee hereby purchases and assumes, without recourse, from the
Assignor, effective as of the Effective Date set forth on the following page,
the
interests set forth on the following page (the "Assigned Interest") in the
Assignor's
rights and obligations under the Credit Agreement, including, without
limitation, the
interests set forth on the following page in the Commitment of the Assignor on
the
Effective Date and the Loans owing to the Assignor which are outstanding on the
Effective Date, together with unpaid interest accrued on the assigned Loans to
the
Effective Date and the amount, if any, set forth on the following page of the
Fees
accrued to the Effective Date for the account of the Assignor. Each of the
Assignor
and the Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 9.04(c) of the Credit Agreement,
a
copy of which has been received by each such party. From and after the
Effective
Date (i) the Assignee shall be a party to and be bound by the provisions of the
Credit Agreement and, to the extent of the interests assigned by this Assignment
and
Acceptance, have the rights and obligations of a Lender thereunder and under the
Credit Agreement or any other document issued in connection therewith and (ii)
the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is organized under the laws of a
jurisdiction
outside the United States, the forms prescribed by the Internal Revenue Service
of
the United States certifying as to the Assignee's exemption from withholding
taxes
with respect to all payments to be made to the Assignee under the Credit
Agreement
or such other documents as are necessary to indicate that all such payments are
subject to such tax at a rate reduced by an applicable tax treaty, all duly
completed
and executed by such Assignee, (ii) if the Assignee is not already a Lender
under
the Credit Agreement, an Administrative Questionnaire and (iii) a processing and
recordation fee of $3,000. 3. This Assignment and Acceptance shall be
governed by and construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Percentage Assigned of
Facility and Commitment
(set forth, to at least 8
decimals, as a percentage of
Principal Amount Assigned the Facility and the
(and identifying information aggregate Commitments of
Facility as to individual Competitive Loans) all Lenders thereunder)
Commitment Assigned: $ %
Standby Loans: $ %
Competitive Loans: $ %
Fees Assigned (if any): $ %
The terms set forth above and on the preceding
page are hereby agreed to: [Accepted
___________________________, as Assignor CHEMICAL BANK, as Administrative
Agent
By:_______________________________ By:__________________________
Name: Name:
Title: Title:
___________________________, as EG&G, INC.
Assignee
By:_______________________________ By:__________________________
Name: Name:
Title: Title:
EXHIBIT D-1
FORM OF OPINION OF XXXXXX XXXXX, ESQ.
[Date]
To the Lenders party to the Credit
Agreements referred to below and
Chemical Bank, as Administrative Agent
Ladies and Gentlemen:
I am the General Counsel of EG&G, Inc., a Massachusetts
corporation (the "Company"), and have acted in the capacity of
General Counsel in connection with each of the 3-Year and 364-Day
Competitive Advance and Revolving Credit Facility
Agreements dated as of March 21, 1994 (collectively, the
"Credit Agreements"), among the Company, the lenders listed in
Schedule 2.01 thereto (the "Lenders"), and Chemical Bank, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent"). This opinion letter is being
furnished to you at the request of the Company pursuant to
Section 4.02(a) of the Credit Agreements. Capitalized terms
used but not defined herein shall have the meanings assigned
to such terms in the Credit Agreements.
In connection with the opinions expressed below, I have
examined the Credit Agreements (including the Exhibits
thereto) and originals or copies, certified or otherwise
identified to my satisfaction, of (a) such corporate records
of the Company as I have considered appropriate, including
copies of the articles of incorporation, as amended, and by-laws,
as amended, of the Company certified as in effect on the
date hereof (collectively, the "Charter Documents") and
certified copies of resolutions of the board of directors of
the Company and (b) such other certificates, agreements,
documents and other instruments of the Company as I have
deemed relevant and necessary as a basis for the opinions
hereinafter expressed, and I have assumed the genuineness of
all signatures therein. The documents listed above are
collectively referred to herein as the "Documents".
Based upon the foregoing, and subject to the
assumptions, limitations and qualifications set forth herein,
I am of the opinion that:
1. The Company (a) is a corporation duly incorporated,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and is qualified to do business
in every jurisdiction where such qualification is necessary
except where the failure to so qualify would not have a
material adverse effect on the business, consolidated
financial position or consolidated results of operations of
the Company and its Consolidated Subsidiaries taken as a
whole, (b) has all corporate powers and all material
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and (c) has
the corporate power to execute, deliver and perform its
obligations under each of the Documents to which it is a party
and to borrow under the Credit Agreements.
2. The execution, delivery and performance by the
Company of each of the Documents to which it is a party and
the borrowings under the Credit Agreements (a) are within the
Company's corporate powers, (b) have been duly authorized by
all necessary corporate action, (c) require no action by or in
respect of, or filing with, any Governmental Authority, (d) do
not (i) contravene, or constitute a default under, any
applicable provision of statutory law or regulation either of
the United States or the Commonwealth of Massachusetts or of
the Charter Documents of the Company or of any existing
agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or (ii) result in the
creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries and (e) do not and will not (i)
violate any order of any Governmental Authority binding upon
the Company, (ii) violate, conflict with, result in a breach
of or constitute (with due notice or lapse of time or both) a
default under any existing indenture, mortgage, agreement for
borrowed money, bond, note or similar instrument or any other
material agreement to which the Company is a party or by which
the Company or any of its property is bound.
3. There is no action, suit or proceeding pending
against, or to my knowledge threatened against the Company or
any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a
reasonable probability of a final adverse decision which would
materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Company and its Consolidated Subsidiaries taken as a whole
or which in any manner draws into question the validity of any
Document to which the Company is a party.
4. Each of the Documents to which the Company is a
party has been duly executed and delivered by the Company and
is a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and to general equitable
principles from time to time in effect.
5. Assuming that the proceeds of the Loans are used for
the purposes set forth in the Credit Agreements, the making of
the Loans and such use will not violate or be inconsistent
with Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System of the United States.
6. The Company is not (a) an "investment company" as
defined in, or subject to regulation under, the Investment
Company Act of 1940 or (b) a "holding company" as defined in,
or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended.
The opinions expressed herein are limited to the laws of
the Commonwealth of Massachusetts and of the United States of
America.
This letter is furnished by me solely for your benefit
and for the benefit of assignees of your rights and
obligations under the Credit Agreements in connection with the
transactions referred to in the Documents and may not, without
my prior written consent, be circulated to, or relied upon by,
any other person or used in any other context.
Very truly yours,
263A
EXHIBIT D-2
FORM OF OPINION OF XXXXXX XXXXX, ESQ.
[Date]
To the Lenders party to the Credit
Agreements referred to below and
Chemical Bank, as Administrative Agent
Ladies and Gentlemen:
I am the General Counsel of EG&G, Inc., a Massachusetts
corporation (the "Company"), and have acted in the capacity of
General Counsel in connection with (a) each of the 3-Year and
364-Day Competitive Advance and Revolving Credit Facility
Agreements dated as of March 21, 1994 (collectively, as in
effect on the date hereof, the "Credit Agreements"), among the
Company, the lenders listed in Schedule 2.01 thereof (together
with their successors and assigns, the "Lenders"), and
Chemical Bank, as administrative agent for the Lenders (in
such capacity, the "Administrative Agent") and (b) the
Borrowing Subsidiary Agreement dated as of the date hereof
(the "Borrowing Subsidiary Agreement") among the Company, [New
Borrower], a [ ] corporation (the "New Borrower"), the
Lenders and the Administrative Agent. This opinion letter is
being furnished to you at the request of the Company pursuant
to Section 4.03(a) of the Credit Agreements. Capitalized
terms used but not defined herein shall have the meanings
assigned to such terms in the Credit Agreements.
In connection with the opinions expressed below, I have
examined (a) the Credit Agreements (including the Exhibits
thereto), (b) the Borrowing Subsidiary Agreement and (c)
originals or copies, certified or otherwise identified to my
satisfaction, of (i) such corporate records of the New
Borrower as I have considered appropriate, including copies of
the articles of incorporation, as amended, and by-laws, as
amended, of the New Borrower certified as in effect on the
date hereof (collectively, the "Charter Documents") and
certified copies of resolutions of the board of directors of
the New Borrower and (ii) such other certificates, agreements,
documents and other instruments of the New Borrower as I have
deemed relevant and necessary as a basis for the opinions
hereinafter expressed. The documents listed above are
collectively referred to herein as the "Documents".
Based upon the foregoing, and subject to the
assumptions, limitations and qualifications set forth herein,
I am of the opinion that:
1. The New Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to do
business and in good standing in each other jurisdiction in
which it owns property and/or conducts its business and in
which failure to be so qualified and in good standing would
have a materially adverse effect on the business of the New
Borrower.
2. The execution, delivery and performance by the New
Borrower of its Borrowing Subsidiary Agreement, and the
performance by the New Borrower of the provisions of the
Credit Agreements applicable to it, are within its corporate
powers, have been duly authorized by all necessary corporate
action and do not contravene (a) its Charter Documents or (b)
any law or any contractual restriction binding on or affecting
it.
3. No authorization or approval or other action by, and
no notice to or filing with, any Governmental Authority is
required for the due execution, delivery and performance by
the New Borrower of its Borrowing Subsidiary Agreement or for
the performance by the New Borrower of the provisions of the
Credit Agreements applicable to it, except for those which
have been duly obtained or made and are in full force and
effect.
4. The Borrowing Subsidiary Agreement and the Credit
Agreements are legal, valid and binding obligations of the New
Borrower enforceable against it in accordance with their
respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the enforcement of the rights of creditors generally
and subject to general equitable principles from time to time
in effect.
The opinions expressed herein are limited to the laws of
the Commonwealth of Massachusetts and of the United States of
America.
This letter is furnished by me solely for your benefit
and for the benefit of assignees of your rights and
obligations under the Credit Agreements in connection with the
transactions referred to in the Documents and may not, without
my prior written consent, be circulated to, or relied upon by,
any other person or used in any other context.
Very truly yours,
263A
EXHIBIT E
BORROWING SUBSIDIARY AGREEMENT dated as of , 19 ,
among EG&G, INC., a Massachusetts corporation (the "Company"), [Name of
Subsidiary], a [ ] corporation (the "New Subsidiary"), the Lenders
named in Schedule 2.01 to the Credit Agreements referred to below (together
with their successors and assigns, the "Lenders") and CHEMICAL BANK, a New
York banking corporation, as Administrative Agent for the Lenders (in such
capacity, the Administrative Agent).
Reference is hereby made to each of the 3-Year and 364-Day
Competitive Advance and Revolving Credit Facility Agreements dated as of
March 21, 1994 (collectively, the "Credit Agreements") between the Company,
the Borrowing Subsidiaries (as such term is defined therein; together with the
Company, the "Borrowers"), the Lenders and the Administrative Agent.
Capitalized terms used herein but not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreements. Under the
Credit Agreements, the Lenders have agreed, upon the terms and subject to the
conditions therein set forth, to make revolving credit loans to the
Company and to wholly owned Subsidiaries that execute and deliver
to the Lenders Borrowing Subsidiary Agreements in the form of this Agreement.
The Company represents that the New Subsidiary is a wholly owned Subsidiary.
The parties hereto agree that the guarantee of the Company contained in the
Credit Agreements applies to the obligations of the New Subsidiary. In
consideration of being permitted to borrow under the Credit Agreements upon
the terms and subject to the conditions set forth therein, the New Subsidiary
agrees that from and after the date of this Agreement it will be, and will be
liable for the observance and performance of all the obligations of, a
Borrowing Subsidiary under the Credit Agreements (including as a Borrower
thereunder), as the same may be amended from time to time, to the same extent
as if it had been one of the original parties to the Credit Agreements
including, without limitation, Section 9.13 thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their authorized officers as of the date first appearing
above.
[New Subsidiary]
by _________________________
Name:
Title:
EG&G, INC.,
by _________________________
Name:
Title:
CHEMICAL BANK, as Administrative
Agent on behalf of the Lenders,
by _________________________
Name:
Title:
Schedule 2.01
to Credit Agreement
Lenders and Commitments
Lender Commitment
Chemical Bank $12,000,000
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The First National Bank of Boston 12,000,000
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Dresdner Bank A.G., New York Branch 9,000,000
and Grand Cayman Branch
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Northern Trust Company 9,000,000
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Werd, Jr.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Royal Bank of Canada 9,000,000
New York Branch
x/x Xxx Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx
000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attention: Manager, Loans Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000/3
with a copy to:
Royal Bank of Canada
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Societe Generale 12,000,000
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Wachovia Bank of Georgia, N.A. $12,000,000
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
CONFORMED COPY
AMENDMENT No. 1 (this "Amendment"), dated as of March 15, 1995, to the
3-Year Competitive Advance and Revolving Credit Facility
Agreement (the "3-Year Agreement"), dated as of March 21,
1994, among EG&G, INC., a Massachusetts corporation (the
"Company"), the Borrowing Subsidiaries (as such term is
defined herein; together with the Company, the "Borrowers"),
the Lenders listed in Schedule 2.01 thereof (the "Lenders")
and CHEMICAL BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent"). Capitalized terms used herein and
defined in the 3-Year Agreement have the meanings set forth
in the 3-Year Agreement.
WHEREAS, the Borrowers have requested and the Administrative Agent
and the Lenders are willing to amend certain provisions of the 3-Year
Agreement for the limited purposes described and on the terms and conditions
set forth herein;
NOW, THEREFORE, for and in consideration of the premises and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree, subject to Section 5 below,
as follows:
1. The definition of the term "Maturity Date" in Section 1.01 of
the 3-Year Agreement is hereby deleted and replaced by the following
sentence: "Maturity Date" shall mean March 21, 1998.
2. The representations and warranties in the 3-Year Agreement
are correct in all material respects on and as of the date hereof, before
and after the execution and delivery of this Amendment, as though made
on and as of the date hereof and no event has occurred and is continuing,
or would result from the execution and delivery of this Amendment, that
constitutes a Default or Event of Default.
3. Except as otherwise expressly modified hereby, all terms and
provisions of the 3-Year Agreement shall be and shall remain unchanged and
the 3-Year Agreement is hereby ratified and confirmed and shall be
and shall remain in full force and effect, enforceable in accordance with
its terms. Any reference in the 3-Year Agreement, or in any documents or
instruments required thereunder or annexes or schedules thereto, referring
to the 3-Year Agreement shall be deemed to refer to the 3-Year Agreement as
amended by this Amendment.
4. This Amendment may be executed in two or more counterparts,
any one of which need not contain the signatures of more than one party,
but all such counterparts taken together will constitute one and the
same Amendment.
5. The Company represents and warrants that it has all requisite
power and authority to enter into this Amendment, that this Amendment has
been duly and validly authorized, executed and delivered by such
party and this Amendment is the legal, valid and binding obligation of
such party. This Amendment shall become effective only upon the receipt
by the Administrative Agent of an opinion of counsel for the Company
confirming the representation and warranty set forth in the preceding
sentence together with evidence of the Company's authority to enter into
this Amendment, in each case satisfactory to the Administrative Agent.
6. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK AS
THOUGH WHOLLY-MADE AND PERFORMED WITHIN SUCH STATE.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
EG&G, INC.,
by
/s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: CFO
CHEMICAL BANK, individually and
as Administrative Agent for the
Lenders,
by
/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF
BOSTON,
by
/s/ Xxxxxx X. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Director
DRESDNER BANK A.G., NEW YORK
BRANCH AND GRAND CAYMAN BRANCH,
by
/s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Vice President
by
/s/ X.X. Xxxxxxx
Name: X.X. Xxxxxxx
Title: SVP
THE NORTHERN TRUST COMPANY,
by
/s/ Xxxxxx X. Xxxxxx, III
Name: Xxxxxx X. Xxxxxx, III
Title: Commercial Banking
Officer
ROYAL BANK OF CANADA,
by
/s/ X.X. Xxxxxxx
Name: X.X. Xxxxxxx
Title: Vice President
SOCIETE GENERALE,
by
/s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
by
/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: SVP
CONFORMED COPY
AMENDMENT No. 2 (this "Amendment"), dated as of March 14,
1996, to the 3-Year Competitive Advance and Revolving Credit Facility
Agreement,
dated as of March 21, 1994, as amended by Amendment No. 1 thereto dated as of
March 15, 1995 (as so amended, the "Agreement"), among EG&G, INC., a
Massachusetts corporation (the "Company"), the Borrowing Subsidiaries (as
such term is defined therein; together with the Company, the "Borrowers"),
the Lenders listed in Schedule 2.01 thereof (the "Lenders") and CHEMICAL
BANK, a New York banking corpora-tion, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"). Capitalized terms
used herein and defined in the Agreement have the meanings set forth in the
Agreement.
WHEREAS the Borrowers have requested and the Administrative Agent
and the Lenders are willing to amend certain provisions of the Agreement for
the limited purposes described and on the terms and conditions set forth
herein.
NOW, THEREFORE, for and in consideration of the premises and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree, on the terms and subject to
the conditions set forth herein, as follows:
SECTION 1. Amendments. (a) All references to "3-Year" in the
Agreement are hereby deleted and replaced by references to "5-Year".
(b) The preamble of the Agreement is hereby amended by deleting
therefrom the reference to "$75,000,000" and replacing it with a
reference to "$100,000,000".
(c) Section 1.01 of the Agreement is hereby amended by:
(i) Adding the following new definitions in their proper
alphabetical order:
"'Amendment Effective Date' shall mean the date on which each condition
to effectiveness set forth in Section 3 of Amendment No. 2 to this Agreement
dated as of March 14, 1996, has been satisfied".
"'Applicable Percentage' shall mean on any date, with respect to
Eurodollar Standby Loans or with respect to the Facility Fee, as the case
may be, the applicable percentage set forth below under the caption
'Eurodollar Spread' or 'Facility Fee Percentage', as the case may be,
based upon the Ratings in effect on such date:
Category 1
Eurodollar Spread
Facility Fee Percentage
Aa3 or higher by Moody's;
AA- or higher by S&P
.130%
.070%
Category 2
A1 or A2 by Moody's;
A+ or A by S&P
.145%
.080%
Category 3
A3 by Moody's;
A- by S&P
.160%
.090%
Category 4
Baa1 by Moody's;
BBB+ by S&P
.175%
.125%
Category 5
Baa2 by Moody's;
BBB by S&P
.200%
.150%
Category 6
Baa3 by Moody's;
BBB- by S&P
.2125%
.1875%
Category 7
Ba1 or lower by Moody's;
BB+ or lower by S&P
.375%
.250%
For purposes of the foregoing, (i) if the Ratings shall fall
within different Categories, the Applicable Percentage shall
be based upon the higher of the two Categories; provided,
however, that if the difference in the Ratings is greater
than one Category, the Applicable Percentage will be based
on the Category which is one Category below the higher
Rating; (ii) if no Ratings exist, the Applicable Percentage
shall be based upon Category 7, and (iii) if any Rating
shall be changed (other than as a result of a change in the
rating system of Moody's or S&P), such change shall be
effective as of the date on which it is first announced by
the rating agency making such change. Each such change in
the Applicable Percentage shall apply during the period
commencing on the effective date of such change and ending
on the date immediately preceding the effective date of the
next such change. If the rating system of Moody's or S&P
shall change, or if either such rating agency shall cease to
be in the business of rating corporate debt obligations, the
parties hereto shall negotiate in good faith to amend the
references to specific ratings in this definition to reflect
such changed rating system or the non-availability of
ratings from such rating agency, and pending the
effectiveness of any such amendment the Applicable
Percentage shall be determined by reference to the rating
most recently in effect prior to such change or cessation."
"'Moody's' shall mean Xxxxx'x Investors Service, Inc.,
or any of its successors."
"'Ratings' shall mean the ratings from time to time
established by Moody's and S&P for senior, unsecured,
non-credit-enhanced long-term debt of the Company."
"'S&P' shall mean Standard and Poor's Rating Group, a
division of The XxXxxx-Xxxx Companies, Inc., or any of its
successors."
(ii) Deleting therefrom the definition of "Consolidated Net
Indebtedness" and replacing it with the following definition:
"'Consolidated Net Indebtedness' shall mean, for any
date, (a) the sum of all outstanding Indebtedness of the
Company and its Consolidated Subsidiaries as of such date
less (b) the lesser of (i) $50,000,000 and (ii) Eligible
Investments as of such date, all determined on a
consolidated basis in accordance with GAAP."
(iii) Deleting therefrom the definition of "Facility B Credit
Agreement" and replacing it with the following definition:
"'Facility B Credit Agreement' shall mean the 364-Day
Competitive Advance and Revolving Credit Facility Agreement
dated the date hereof among the parties hereto, as amended
from time to time."
(iv) Deleting therefrom the definition of "Maturity Date"
and replacing it with the following definition:
"'Maturity Date' shall mean the fifth anniversary of
the Amendment Effective Date."
(d) Section 2.05(a) of the Agreement is hereby deleted in
its entirety and replaced with the following sentences:
"The Company agrees to pay to each Lender, through the
Administrative Agent, on each March 31, June 30,
September 30 and December 31 (with the first payment being
due on March 31, 1996) and on the date on which the
Commitment of such Lender shall be terminated as provided
herein, a facility fee (a 'Facility Fee'), at a rate per
annum equal to the Applicable Percentage from time to time
in effect on the average daily amount of the Commitment of
such Lender, whether used or unused, during the preceding
quarter (or other period commencing on the Amendment
Effective Date, or ending with the Maturity Date or the date
on which the Commitment of such Lender shall be terminated).
All Facility Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days. The
Facility Fee due to each Lender shall commence to accrue on
the Amendment Effective Date, and shall cease to accrue on
the earlier of the Maturity Date and the termination of the
Commitment of such Lender as provided herein."
(e) Section 2.07(a)(i) of the Agreement is hereby amended
by replacing the reference to "1/4 of 1%" with a reference to "the
Applicable Percentage from time to time in effect".
(f) Each reference in Section 3.04(a) of the Agreement to
"January 3, 1993" is hereby replaced with a reference to "January 1,
1995", and each reference in Section 3.04(b) of the Agreement to
"October 3, 1993" is hereby replaced with a reference to "October 1,
1995".
(g) Schedule 2.01 to the Agreement is hereby deleted and
replaced with Schedule 2.01 to this Amendment. It is understood and
agreed that immediately prior to the effectiveness of this Amendment
the Company shall have terminated all the Commitments then outstanding
and that upon the effectiveness of this Amendment, notwithstanding the
provisions of Section 2.10(b) of the Agreement, the outstanding
Commitments shall be as set forth on Schedule 2.01 to this Amendment.
(h) Schedule 3.08 and Schedule 3.12(b) to the Agreement are
hereby deleted and replaced, respectively, with Schedule 3.08 and
Schedule 3.12(b) to this Amendment.
SECTION 2. Representations and Warranties. The Company
represents and warrants as of the Amendment Effective Date to each of
the Lenders and the Administrative Agent that:
(a) This Amendment has been duly authorized, executed and
delivered by the Company, and this Amendment is, and the
Agreement, as amended hereby, will upon the Amendment Effective
Date be, the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating
to enforceability (whether enforcement is sought by proceedings
in equity or at law).
(b) The representations and warranties set forth in
Article III of the Agreement, as amended hereby, are true and
correct in all material respects with the same effect as if made
on the Amendment Effective Date, except to the extent such
representations and warranties expressly relate to an earlier
date.
(c) Immediately before and immediately after the
effectiveness of this Amendment, no Event of Default or Default
has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Amendment
shall become effective as of and from the Amendment Effective Date
when (a) the Administrative Agent shall have received counterparts of
this Amendment that, when taken together, bear the signatures of all
the parties hereto and (b) each of the following conditions precedent
shall have been satisfied in respect of this Amendment:
(i) immediately prior to the effectiveness of this
Amendment, the Company shall have effectively terminated all the
Commitments then outstanding in accordance with Section 2.10 of
the Agreement (and, solely for purposes of permitting each
termination, the notice requirements of Section 2.10 are hereby
waived);
(ii) the Administrative Agent shall have received the payment
in full of all obligations of the Borrowers outstanding under the
Agreement, this Amendment or any related agreement;
(iii) the Administrative Agent shall have received a
certificate, dated the Amendment Effective Date and signed by a
Financial Officer of the Company, confirming (i) that the
representations and warranties set forth in Article III of the
Agreement, as amended hereby, are true and correct in all
material respects, with the same effect as though made on and as
of the Amendment Effective Date, except to the extent that such
representations and warranties expressly relate to an earlier
date, and (ii) that no Event of Default or Default has occurred
and is continuing;
(iv) the Administrative Agent shall have received certified
copies of the resolutions of the Board of Directors of the
Company approving or authorizing approval of the execution and
delivery of this Amendment and the performance of the Agreement
as amended hereby;
(v) the Administrative Agent shall have received a
certificate of the Clerk or an Assistant Clerk of the Company,
dated the Amendment Effective Date, (A) as to the absence of
amendments to the certificate of incorporation or the by-laws of
the Company since March 21, 1994 (or, in the event there shall
have been any such amendments, setting forth copies thereof
certified by the Secretary of State of Massachusetts in the case
of amendments to the certificate of incorporation and by the
Clerk or an Assistant Clerk of the Company in the case of
amendments to the by-laws), and (B) certifying the incumbency and
signatures of the officer or officers of the Company signing this
Amendment;
(vi) the Administrative Agent shall have received a
favorable written opinion of the General Counsel for the Company,
dated the Amendment Effective Date and addressed to the Lenders,
to the effect set forth in Exhibit D-1 of the Agreement, provided
that, for purposes of the foregoing, references in such Exhibit
to execution and delivery of the Agreement shall be deemed to
refer to execution and delivery of this Amendment and other
references therein to the Agreement shall be deemed to refer to
the Agreement as amended hereby;
(vii) the Amendment Effective Date shall have occurred on or
prior to March 19, 1996.
SECTION 4. Agreement. Except as specifically stated
herein, the provisions of the Agreement are and shall remain in full
force and effect. As used therein, the terms "Agreement", "herein",
"hereunder", "hereinafter", "hereto", "hereof" and words of similar
import shall, unless the context otherwise requires, refer to the
Agreement as amended hereby.
SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in
two or more counterparts, each of which shall constitute an original
but all of which when taken together shall constitute but one
contract.
SECTION 7. Expenses. The Company agrees to reimburse the
Administrative Agent for all reasonable out-of-pocket expenses
incurred by it in connection with this Amendment, including, but not
limited to, the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
EG&G, INC.,
by
Name:
Title:
CHEMICAL BANK, individually and as
Administrative Agent for the Lenders,
by
Name:
Title:
DRESDNER BANK A.G., NEW YORK BRANCH
AND GRAND CAYMAN BRANCH,
by
/s/ J. Xxxxxxx Xxxxxxx
Name: J. Xxxxxxx Xxxxxxx
Title: Senior Vice President
by
/s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
by
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
by
Name:
Title:
THE NORTHERN TRUST COMPANY,
by
/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Commercial Banking
Officer
ROYAL BANK OF CANADA,
by
/s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Manager
SOCIETE GENERALE,
by
/s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Assistant Vice President
STANDARD CHARTERED BANK,
by
/s/ Xxxxxxx X. Xxxxx, III
Name: Xxxxxxx X. Xxxxx III
Title: Senior Vice President
by
/s/ Xxxxxx Lob
Name: Xxxxxx Lob
Title: Vice President
WACHOVIA BANK OF GEORGIA,
N.A.,
by
Name:
Title:
Schedule 2.01
Lenders and Commitments
Lender Commitment
Chemical Bank $16,000,000
000 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Dresdner Bank A.G., New York Branch $10,500,000
and Grand Cayman Branch
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The First National Bank of Boston $10,500,000
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The First National Bank of Chicago $10,500,000
000 X. 00xx Xxxxxx
Equitable Building, 8th Floor
Suite 4000
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Northern Trust Company $10,500,000
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Mr. J. Xxxx XxXxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Royal Bank of Canada $10,500,000
New York Branch
x/x Xxx Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx
000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Manager, Loan Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000/3
with a copy to:
Royal Bank of Canada
Xxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Societe Generale $10,500,000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Ms. Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Standard Chartered Bank $10,500,000
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Lob
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Wachovia Bank of Georgia, N.A. $10,500,000
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SCHEDULE 3.12 (a)
None
SCHEDULE 3.12 (b)
- Mound Facility, Miamisburg, Ohio
- Tooele Chemical Demilitarization Facility, Tooele, Utah
- Xxxxxxx Space Center, Florida
- Xxxxxxx Research Center, Xxxxxxx, Virginia
SCHEDULE 3.12 (c)
None
SCHEDULE 3.08 Subsidiaries
State or Country Number
of Incorporation of
Name of Company or Organization Parent
-------------------------------------------------------------------------------
1 EG&G, Inc. Massachusetts N/A
2 EG&G Alabama, Inc. Alabama 1
3 EG&G Aluminum, Inc. Delaware 33
4 EG&G Astrophysics Research
Corporation California 1
5 EG&G Automotive Research, Inc. Texas 22
6 EG&G Xxxxxxxx, Inc. California 33
7 EG&G Benelux X.X. Xxxxxxxxxxx 00 (77%) 1 (23%)
8 EG&G Canada Investments, Inc. Canada 86
9 EG&G Canada Limited Canada 1 (10%) 28 (43.5%)
38 (46.5%)
10 EG&G Xxxxxxxx Engineering Company Oklahoma 1
11 EG&G Defense Materials, Inc. Utah 1
12 EG&G do Brasil Ltda. Brazil 22 (95%) 85 (5%)
13 EG&G Dynatrend, Inc. Delaware 1
14 EG&G E.C. Bahrain 22
15 EG&G Energy Measurements, Inc. Nevada 1
16 EG&G Environmental, Inc. Delaware 1
17 EG&G Exporters Ltd. U.S. Virgin Islands 22
18 EG&G Florida, Inc. Florida 1
19 EG&G Flow Technology, Inc. Arizona 1
20 EG&G Gamma Scientific,
Incorporated Delaware 22
21 EG&G GmbH Germany 22
22 EG&G Holdings, Inc. Massachusetts 1 (87%) 24 ( 6%)
71 (5%) 10 (2%)
23 EG&G Idaho, Inc. Idaho 22
24 EG&G Instruments, Inc. Delaware 22
25 EG&G Instruments GmbH Germany 1
26 EG&G International, Ltd. Xxxxxx Xxxxxxx 00
00 XX&X Xxxxx, Inc. Delaware 22
28 EG&G Xxxxxx Infrared, Inc. Pennsylvania 1
29 EG&G KT Aerofab, Inc. California 22
30 EG&G Langley, Inc. Virginia 18
31 EG&G Ltd. United Kingdom 22 (80.9%) 4 (19.1%)
32 EG&G Management Systems, Inc. New Mexico 1
33 EG&G Metals, Inc. Massachusetts 1
34 EG&G Missouri Metal
Shaping Company Missouri 22
35 EG&G Mound Applied
Technologies, Inc. Ohio 1
36 EG&G Omni, Inc. Philippines 22
37 EG&G Power Systems, Inc. California 1
38 EG&G Pressure Science Incorporated Maryland 22
39 EG&G Rocky Flats, Inc. Colorado 1
40 EG&G Sealol Eagle, Inc. Delaware 42 (51%)
41 EG&G Sealol Ltd. (Sealol Egypt) Egypt 22 (22%) 26 (78%)
42 EG&G Sealol, Inc. Delaware 22
43 EG&G Services, Inc. Delaware 1
44 EG&G Special Projects, Inc. Nevada 1
45 EG&G Star City, Inc. Ohio 2
46 EG&G Structural Kinematics, Inc. Michigan 1
47 EG&G S.A. France 26
48 EG&G SpA Italy 22
49 EG&G Technical Services of
West Virginia, Inc. West Virginia 51
50 EG&G Ventures, Inc. Massachusetts 1
51 EG&G Washington Analytical District of Columbia 1
Services Center, Inc.
52 EG&G Watertown, Inc. Massachusetts 73
53 Antarctic Support Associates
(Partnership) Colorado 1 (40%)
54 Benelux Analytical
Instruments S.A. Belgium 1 (92.3%)
55 Berthold Analytical
Instruments, Inc. Delaware 1
00 Xxxxxxxx X.X. Xxxxxxxxxxx 00
00 Xxxxxxxx Xxxxxx S.A. France 47
58 Berthold GmbH Germany 1
59 Berthold Munchen GmbH Germany 67 (60%)
60 Biozone Oy Finland 83
61 B.A.I. GmbH Austria 58
62 Eagle EG&G Aerospace Co. Ltd. Japan 1 (49%)
63 EC III, Inc. New Mexico 1 (50%)
64 Xxxxxxx Optoelectronics GmbH Germany 67
65 Xxxxxxx Shenzhen
Optoelectronics Co. Ltd. China 64 (90%)
66 IC Sensors, Inc. California 1
67 Laboratorium Prof. Xx. Xxxxxx Germany 21 (58.0%) 25 (2.3%)
Berthold GmbH & Co. KG 5 (39.7%)
68 NOK EG&G Optoelectronics
Corporation Japan 1 (49%)
69 Pribori Oy Finland 83
70 PT EG&G Xxxxxxx Optoelectronics Indonesia 22
71 Reticon Corporation California 1
72 Xxxxxxxx Electrical &
Engineering Co., Inc. Texas 1
73 Rotron Incorporated New York 1
74 Science Support Corporation Delaware 1
75 Sealol Hindustan Limited India 42 (20%)
76 Sealol S.A. Venezuela 42
77 Seiko EG&G Co. Ltd. Japan 1 (49%)
78 Shanghai EG&G Reticon
Optoelectronics Co. Ltd. China 71 (50%)
79 Societe Civile Immobiliere France 1 (82.5%) 57 (17.5%)
80 Vactec, Inc. Missouri 1
81 WALLAC A/S Denmark 83
82 WALLAC Norge AS Xxxxxx 00
00 XXXXXX Xx Xxxxxxx 22
84 WALLAC Sverige AB Sweden 83
85 WALLAC, Inc. Maryland 1
00 Xxxxxxxxx X.X. Xxxxxxxxxxx 00
00 Xxxxxxxx X.X. Xxxxxxxxxxx Antillies 26
88 Xxxxxx Components, Inc. Xxx Xxxx 0
00 XXX Xxxxxxx Xxxxxx 69
