AS AMENDED THROUGH JUNE 11, 1998
================================================================================
CREDIT AGREEMENT
among
USI AMERICAN HOLDINGS, INC.,
USI ATLANTIC CORP.,
(formerly known as U.S. Industries,Inc.)
U.S. INDUSTRIES, INC.,
(formerly known as USI, Inc.)
VARIOUS BANKS,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Issuing Bank, Swingline Bank and Agent,
and
BA SECURITIES INC.,
as Arranger
----------------------------------
Dated as of December 12, 1996
----------------------------------
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I.DEFINITIONS..........................................................1
1.01 Defined Terms....................................................1
1.02 Other Definitional Provisions...................................23
1.03 Accounting Principles...........................................24
1.04 Exchange Rates..................................................24
ARTICLE II.THE CREDIT FACILITIES..............................................24
2.01 Amounts and Terms of Commitments................................24
2.02 Loan Accounts; Notes............................................27
2.03 Procedure for Committed Borrowing, Swingline Borrowing and
Multicurrency Borrowing.........................................28
2.04 Conversion and Continuation Elections for Committed Borrowings
and Multicurrency Borrowings....................................30
2.05 Bid Borrowings..................................................32
2.06 Procedure for Bid Borrowings....................................32
2.07 Voluntary Reduction and Termination of Commitments..............36
2.08 Mandatory Reduction of Loan Commitments.........................37
2.09 Voluntary Prepayments of Committed Loans, Swingline Loans
and Multicurrency Loans.........................................37
2.10 Mandatory Prepayments...........................................38
2.11 Repayment of Principal..........................................39
2.12 Interest........................................................39
2.13 Fees. In addition to fees described in Section 3.08............41
2.14 Computation of Fees and Interest................................42
2.15 Payments by the Borrowers.......................................43
2.16 Payments by the Banks to the Agent..............................44
2.17 Sharing of Payments, etc........................................45
2.18 Guaranty........................................................46
2.19 Termination Date Extensions.....................................46
2.20 Rounding and Other Consequential Changes........................46
ARTICLE III.THE LETTERS OF CREDIT.............................................46
3.01 The Letter of Credit Subfacility................................46
3.02 Issuance, Amendment and Renewal of Letters of Credit............48
3.03 Participations, Drawings and Reimbursements.....................49
i
3.04 Repayment of Participations.....................................51
3.05 Role of the Issuing Bank........................................51
3.06 Obligations Absolute............................................52
3.07 Cash Collateral Pledge..........................................53
3.08 Letter of Credit Fees...........................................53
3.09 Uniform Customs and Practice....................................54
ARTICLE IV.TAXES, YIELD PROTECTION AND ILLEGALITY.............................54
4.01 Taxes...........................................................54
4.02 Illegality......................................................58
4.03 Increased Costs and Reduction of Return.........................58
4.04 Funding Losses..................................................59
4.05 Inability to Determine Rates....................................60
4.06 Reserves on Eurodollar Committed Loans, Eurodollar
Multicurrency Loans or IBOR Loans...............................61
4.07 Certificates of Banks...........................................61
4.08 Change of Lending Office, Replacement Bank......................61
4.09 Survival........................................................62
ARTICLE V.CONDITIONS PRECEDENT................................................62
5.01 Conditions to the Effective Date................................62
5.02 Conditions to all Borrowings and the Issuance of
any Letters of Credit...........................................64
ARTICLE VI.REPRESENTATIONS AND WARRANTIES.....................................65
6.01 Corporate Existence and Power...................................65
6.02 Corporate Authorization; No Contravention.......................65
6.03 Governmental Authorization......................................65
6.04 Binding Effect..................................................66
6.05 Litigation......................................................66
6.06 No Default......................................................66
6.07 ERISA Compliance................................................66
6.08 Use of Proceeds; Margin Regulations.............................67
6.09 Title to Properties.............................................67
6.10 Taxes...........................................................67
6.11 Financial Statements............................................67
6.12 Securities Law, etc.; Compliance................................67
6.13 Governmental Regulation.........................................68
6.14 Accuracy of Information.........................................68
6.15 Hazardous Materials.............................................68
6.16 Senior Notes....................................................68
ii
Page
----
ARTICLE VII.AFFIRMATIVE COVENANTS.............................................69
7.01 Financial Statements............................................69
7.02 Certificates; Other Information.................................69
7.03 Notices.........................................................70
7.04 Maintenance of Corporate Existence, etc.........................70
7.05 Foreign Qualification, etc......................................70
7.06 Payment of Taxes, etc...........................................71
7.07 Maintenance of Property; Insurance..............................71
7.08 Compliance with Laws, etc.......................................71
7.09 Books and Records...............................................71
7.10 Use of Proceeds.................................................71
7.11 End of Fiscal Years; Fiscal Quarters............................72
ARTICLE VIII.NEGATIVE COVENANTS...............................................72
8.01 Limitation on Liens.............................................72
8.02 Disposition of Assets...........................................73
8.03 Consolidations, Merger, etc.....................................73
8.04 Limitation on Indebtedness......................................74
8.05 Transactions with Affiliates....................................75
8.06 Use of Credits; Compliance With Margin Regulations..............75
8.07 Preferred Stock.................................................76
8.08 Demerger Transaction Documents..................................76
8.09 Environmental Liabilities.......................................76
8.10 Financial Covenants.............................................76
8.11 Special Covenants...............................................76
ARTICLE ▇▇.▇▇▇▇▇▇ OF DEFAULT..................................................77
9.01 Event of Default................................................77
9.02 Remedies........................................................79
9.03 Rights Not Exclusive............................................80
ARTICLE X.THE GUARANTY........................................................81
10.01 Guaranty from the Guarantor Parties............................81
ARTICLE XI.THE AGENT, THE ISSUING BANK AND THE ARRANGER.......................84
11.01 Appointment and Authorization..................................84
11.02 Delegation of Duties...........................................84
11.03 Liability of Agent.............................................85
iii
Page
----
11.04 Reliance by Agent..............................................85
11.05 Notice of Default..............................................86
11.06 Credit Decision................................................86
11.07 Indemnification................................................86
11.08 Agent in Individual Capacity...................................87
11.09 Successor Agent................................................87
11.10 The Arranger...................................................88
11.11 CoAgents; Managing Agents......................................88
ARTICLE XII.MISCELLANEOUS.....................................................88
12.01 Amendments and Waivers.........................................88
12.02 Notices........................................................89
12.03 No Waiver; Cumulative Remedies.................................90
12.04 Costs and Expenses.............................................90
12.05 Indemnity......................................................91
12.06 Successors and Assigns.........................................91
12.07 Assignments, Participations, etc...............................92
12.08 Confidentiality................................................93
12.09 Setoff.........................................................94
12.10 Notification of Addresses, Lending Offices, etc................94
12.11 Counterparts...................................................94
12.12 Severability...................................................94
12.13 No Third Parties Benefited.....................................94
12.14 Governing Law and Jurisdiction.................................95
12.15 Waiver of Jury Trial...........................................95
12.16 Conversion of Currencies.......................................96
SCHEDULE 1.01(a).. Lending Offices
SCHEDULE 1.01(b).. Commitments
SCHEDULE 1.04(a).. Exchange Rate
SCHEDULE 6.15..... Environmental Matters
SCHEDULE 8.04(a) Existing Indebtedness
EXHIBIT A......... Form of Notice of Borrowing
EXHIBIT B......... Form of Notice of Conversion/Continuation
EXHIBIT C......... Form of Competitive Bid Request
EXHIBIT D......... Form of Competitive Bid
EXHIBIT E......... Form of Leverage Ratio Certificate
EXHIBIT F......... Form of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ Opinion
EXHIBIT G......... Form of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. Opinion
EXHIBIT H......... Form of White & Case LLP Opinion
EXHIBIT I......... Form of Compliance Certificate
EXHIBIT J......... Form of Assignment and Acceptance
(iv)
CREDIT AGREEMENT, dated as of December 12, 1996, among USI
AMERICAN HOLDINGS, INC., a Delaware corporation (the "Company"), USI ATLANTIC
CORP. (formerly known as U.S. Industries, Inc.), a Delaware corporation ("Old
USI"), U.S. INDUSTRIES, INC. (formerly known as USI, Inc.), a Delaware
corporation ("New USI"), the several financial institutions from time to time
party to this Agreement (the "Banks"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Issuing Bank, Swingline Bank and Agent, and BA
SECURITIES, INC., as Arranger.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Banks are willing to make available to the Borrowers the
respective credit facilities provided for herein;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as follows:
ARTICLE I.
DEFINITIONS
1.01 Defined Terms. As used in this Agreement, the capitalized
terms in the preamble and the recitals hereto shall have the meanings therein
given them, and the following words and terms shall have the meanings specified
below:
"Absolute Rate" has the meaning specified in Section
2.06(c)(ii)(D).
"Absolute Rate Auction" means a solicitation of Competitive
Bids setting forth Absolute Rates pursuant to Section 2.06.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest
at a rate determined with reference to the Absolute Rate.
"Adjusted EBITDA" means, for any Measurement Period, EBITDA
for such period, adjusted, on a pro forma basis, to reflect the financial
effects of any Asset Sales and/or asset acquisitions made by New USI or its
Subsidiaries during such period as if such Asset Sales and/or asset
acquisitions, as the case may be, occurred on the first day of such period.
"Affiliate" means, with respect to any Person, any other
Person (i) directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person or (ii) that directly or indirectly
owns more than 10% of any class of the capital stock, of or equity interests in,
such Person. A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management and policies of such other Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent" means Bank of America in its capacity as agent for the
Banks hereunder, and any successor agent.
"Agent-Related Persons" has the meaning specified in Section
11.03.
"Agent's Payment Office" means the address for payments set
forth on the signature page hereto in relation to the Agent or such other
address as the Agent may from time to time specify in accordance with Section
12.02.
"Aggregate Commitment" means the combined Commitments of the
Banks, in the initial amount of $750,000,000, as such amount may be reduced from
time to time pursuant to this Agreement.
"Agreement" means this Credit Agreement as from time to time
amended, modified or supplemented.
"Agreement Currency" has the meaning specified in Section
12.16(b).
"Amendment Effective Date" means June 11, 1998.
"Applicable Creditor" has the meaning specified in Section
12.16(b).
"Applicable Margin" means the margin to be added to the Base
Rate, IBOR or LIBOR, as the case may be, in accordance with Section 2.12(a).
"Arranger" has the meaning specified in the preamble hereto.
"Asset Sale" means the direct or indirect sale, lease,
transfer, conveyance or other disposition (including, without limitation,
dispositions pursuant to Sale and Leaseback Transactions), in a single
transaction or a series of transactions, by New USI or any of its Subsidiaries
to any Person (other than New USI or any of its Wholly-Owned Subsidiaries) of
any property of New USI or any of its Subsidiaries, other than (i) assets
disposed of in the ordinary course of business and (ii) inventory, real property
or equipment no longer used or useful in the business of New USI or any of its
Subsidiaries, provided (A) in any event that "Asset Sale" shall include
dispositions of (x) principal divisions or lines of business of any Person or
capital stock of any Subsidiary of such Person or (y) Investments held on the
Effective Date in Ground Round Restaurants, Inc. and (B) the fair market value
of Asset Sales arising from any Receivables Sale shall be the Receivables Sale
Amount with respect to such Receivables Sale.
"Assignee" has the meaning specified in Section 12.07(a).
"Assignment and Acceptance" has the meaning specified in
Section 12.07(a).
"Attorney Costs" means and includes all reasonable documented
fees and disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all reasonable
disbursements of internal counsel.
2
"Bank Affiliate" means a Person engaged primarily in the
business of commercial banking that is an Affiliate of a Bank.
"Bank of America" means Bank of America National Trust and
Savings Association, a national banking association, in its individual capacity.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. ss. 101, et seq.).
"Banks" has the meaning specified in the preamble hereto.
"Base Rate" means, for any day, the higher of (a) the
Reference Rate or (b) the Federal Funds Rate plus 1/2%, in each case as in
effect for such day.
"Base Rate Borrowing" means a Borrowing comprised of loans
bearing interest at a rate determined by reference to the Base Rate in
accordance with Article II.
"Base Rate Committed Loan" means a Committed Loan that bears
interest based on the Base Rate.
"Base Rate Loan" means any Base Rate Committed Loan, or a
Swingline Loan that bears an interest rate based on the Base.
"Bid Borrowing" means a Borrowing hereunder consisting of one
or more Bid Loans made to a Borrower on the same day by one or more Banks.
"Bid Loan" means a Loan by a Bank to a Borrower under Section
2.05, which may be a Eurodollar Bid Loan or an Absolute Rate Bid Loan.
"Bid Loan Exposure" means, with respect to any Bank at any
time, the aggregate principal amount at such time of all outstanding Bid Loans
made by such Bank.
"Bid Loan Lender" means, in respect of any Bid Loan, the Bank
making such Bid Loan to a Borrower.
"Borrower" means each of the Company and New USI.
"Borrowing" means a borrowing hereunder consisting of one or
more Loans made to a Borrower on the same Borrowing Date by the Banks, the
Swingline Bank, the Multicurrency Banks or the Bid Loan Lenders pursuant to
Section 2.01, and may be a Committed Borrowing, a Swingline Borrowing, a
Multicurrency Borrowing or a Bid Borrowing.
"Borrowing Date" means, in relation to any Loan, the date of
the borrowing of such Loan as specified in the relevant Notice of Borrowing for
a Committed Borrowing or Multicurrency Borrowing, request for a Swingline Loan
or Competitive Bid Request.
3
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in San Francisco or New York City are
authorized or required by law to close and, if such term is used in relation to
any Eurodollar Loan or IBOR Loan or the Interest Period therefor, any such day
on which dealings are carried on by and between banks in Dollar deposits in the
applicable interbank market, and if such term is used in relation to any
Multicurrency Loan or the Interest Period therefor, any such day on which
dealings are carried on by and between commercial banks in London for the
applicable Eligible Currency; provided, however, that on and from the
Commencement of the Third Stage of EMU, if such reference to "Business Day"
relates to a date for the payment or purchase of a sum denominated in the Euro
or in a National Currency Unit, "Business Day" shall also mean in the case of
Multicurrency Loans (a) a day such clearing or settlement system as is
determined by the Agent to be suitable for clearing or settlement of the Euro is
open for business and (b) a day that banks are generally open for business in
such financial center as is determined by the Agent to be suitable for clearing
or settlement of such National Currency Unit.
"Calculation Date" means (a) the last Business Day of each
calendar quarter, (b) at any time when the aggregate amount of the Dollar Credit
Exposures exceeds 85% of the Aggregate Commitment, the last Business Day of each
two-calendar week period and (c) any day on which a Multicurrency Borrowing is
made.
"Capital" means, at any time, the sum of (x) Total Funded Debt
and (y) Net Worth at such time.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, regarding capital
adequacy of any bank or of any corporation controlling a bank.
"Capital Lease" has the meaning specified in the definition of
"Capital Lease Obligations".
"Capital Lease Obligations" means all monetary obligations of
New USI or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease ("Capital
Lease").
"Cash Collateralize" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the Issuing Bank and the
Banks, as collateral for the Letter of Credit Obligations, cash or deposit
account balances pursuant to documentation in form and substance satisfactory to
the Agent and the Issuing Bank (which documents are hereby consented to by the
Banks). Derivatives of such term shall have corresponding meanings. The relevant
Borrower hereby grants to the Agent, for the benefit of the Agent, the Issuing
Bank and the Banks, a security interest in all such cash and deposit account
balances. Cash collateral shall be invested in Cash Equivalents of a tenor
satisfactory to the Agent and as instructed by such Borrower, which Cash
Equivalents shall be held in the name of such Borrower and under the control of
the Agent in a manner satisfactory to the Agent.
4
"Cash Equivalents" means any or all of the following: (i)
obligations of, or guaranteed as to interest and principal by, the United States
Government maturing within one year after the date on which such obligations are
purchased; (ii) open market commercial paper of any corporation (other than New
USI or any of its Subsidiaries) incorporated under the laws of the United States
or any State thereof or the District of Columbia rated P-1 or its equivalent by
▇▇▇▇▇'▇ or A-1 or its equivalent or higher by S&P; (iii) time deposits or
certificates of deposit maturing within one year after the issuance thereof
issued by commercial banks organized under the laws of any country which is a
member of the OECD and having a combined capital and surplus in excess of
$250,000,000 or which is a Bank; (iv) repurchase agreements with respect to
securities described in clause (i) above entered into with an office of a bank
or trust company meeting the criteria specified in clause (iii); and (v) money
market funds investing only in investments described in clauses (i) through
(iv).
"Change of Control" means (a) the acquisition by any Person,
or two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended) of (i) more than 25% of the
outstanding voting shares of New USI or (ii) 20% or more of the outstanding
voting shares of New USI if, following such acquisition, the board of directors
of New USI shall cease to consist of a majority of Continuing Directors, (b) Old
USI shall cease to be a Wholly-Owned Subsidiary of New USI or (c) the occurrence
of a Senior Note Change of Control.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any regulations promulgated thereunder.
"Commencement of the Third Stage of EMU" means commencement of
the third stage of EMU or circumstances which (in the opinion of the Majority
Multicurrency Banks) have substantially the same effect and result in
substantially the same consequences as the third stage of EMU as contemplated by
the Treaty on European Union.
"Commitment" means, for each Bank, the amount set forth
opposite such Bank's name under the caption "Commitment" on Schedule 1.01(b), as
such amount may be reduced from time to time pursuant to the provisions hereof.
"Commitment Percentage" means, as to any Bank, the percentage
equivalent of such Bank's Commitment divided by the Commitments of all the
Banks, provided that if the Commitments have been terminated in full, the
"Commitment Percentage" of each Bank shall be determined by dividing such Bank's
Commitment immediately prior to such termination by all the Banks' Commitments
immediately prior to such termination.
"Committed Borrowing" means a Borrowing hereunder consisting
of Committed Loans made on the same day by the Banks ratably according to their
respective pro rata shares and, in the case of Eurodollar Committed Loans,
having the same Interest Periods.
5
"Committed Loan" means a Loan by a Bank to any Borrower under
Section 2.01(a), and may be a Eurodollar Committed Loan or a Base Rate Committed
Loan (each, a "Type" of Committed Loan).
"Committed Loan Exposure" means, with respect to any Bank at
any time, the aggregate principal amount at such time of all outstanding
Committed Loans made by such Bank.
"Company" has the meaning specified in the preamble hereto.
"Competitive Bid" means an offer by a Bank to make a Bid Loan
in accordance with Section 2.06(b).
"Competitive Bid Request" has the meaning specified in Section
2.06(a).
"Compliance Certificate" means the compliance certificate in
substantially the form of Exhibit I, to be executed by a Responsible Officer of
New USI and delivered pursuant to Section 7.02(a).
"Consolidated Leverage Ratio" means, as at the end of any
Measurement Period, the ratio of:
(a) Total Funded Debt on the last day of such period
to
(b) Adjusted EBITDA for such period.
"Consolidated Net Tangible Assets" means, at any date, the
total amount of assets appearing on the most recent consolidated balance sheet
of New USI and its Subsidiaries prepared in accordance with GAAP (in the case of
the December 31, 1997 balance sheet, after giving pro forma effect to the
Mergers), less (i) all current liabilities (due within one year) as shown on
such balance sheet (excluding current maturities of long term indebtedness and
intercompany items), (ii) applicable depreciation, amortization and other
valuation reserves not already reflected in such total amount of assets and
(iii) Intangible Assets and liabilities relating thereto. As used in the
previous sentence, the term "Intangible Assets" means the value (net of any
applicable reserves), as shown on or reflected in such balance sheet, of: (a)
all trade names, trademarks, licenses, patents, copyrights, service marks,
goodwill and other like intangibles and (b) unamortized debt discount and
expense, less unamortized premium.
"Continuation Date" means any date on which a Borrower elects
to continue a Eurodollar Committed Loan as a Eurodollar Committed Loan for a
further Interest Period in accordance with the provisions of Section 2.04.
"Continuing Directors" means the directors of New USI on the
Amendment Effective Date and each other director, if such director's nomination
for election to the board of directors of New USI is recommended by a majority
of the then Continuing Directors.
6
"Contractual Obligations" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or any of
its property is bound.
"Conversion Date" means any date on which a Borrower elects to
convert a Base Rate Committed Loan to a Eurodollar Committed Loan, or a
Eurodollar Committed Loan to a Base Rate Committed Loan, in each case in
accordance with the provisions of Section 2.04.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Demerger Transaction Documents" means each of the agreements
and documents entered into between Old USI and/or any of its Subsidiaries and
▇▇▇▇▇▇ and/or any of its Subsidiaries on or about May 31, 1995 in connection
with the demerger of Old USI from ▇▇▇▇▇▇.
"Disbursement Date" has the meaning specified in Section
3.03(b).
"Dollar Credit Exposure" means, with respect to any Bank at
any time, the sum of the Committed Loan Exposure, the Bid Loan Exposure and the
Multicurrency Loan Exposure of such Bank at such time.
"Dollar Equivalent" means, on any date of determination, with
respect to any amount in any Eligible Currency, the equivalent in Dollars of
such amount, determined by the Agent using the Exchange Rate with respect to
such Eligible Currency then in effect as determined pursuant to Section 1.04(a).
"Dollars" and "$" each mean lawful money of the United States.
"Domestic Lending Office" has the meaning specified in the
definition of "Lending Office".
"EBITDA" means, for any Measurement Period:
(i) the sum for such period of
(a) Net Income;
(b) Net Interest Expense to the extent
deducted in determining such Net Income;
(c) all taxes on or measured by income to
the extent deducted in determining such Net Income;
(d) all charges in respect of foreign
currency translations; and
7
(e) the aggregate amount of depreciation
expense, amortization expense and other similar non-cash
charges (including, without limitation, losses due to equity
investments) to the extent deducted in determining such Net
Income;
minus
(ii) for any period, the aggregate non-cash gains for such
period from equity investments to the extent added in determining Net
Income for such period;
provided, however, that for purposes of this definition, Net Income shall be
computed without giving effect to (x) non-cash effects of changes to GAAP after
the Effective Date and (y) extraordinary losses or extraordinary gains or gains
or losses arising from Asset Sales.
"Effective Date" means December 12, 1996.
"Eligible Assignee" means and includes a commercial bank,
financial institution or other "accredited investor" (as defined in Regulation D
of the Securities Act of 1933).
"Eligible Currency" means Pounds Sterling and any other
currency (other than Dollars) that shall be designated by a Borrower in a notice
delivered to the Agent and each Multicurrency Bank by a Borrower and that is
freely tradeable and exchangeable into Dollars in the London market and for
which an Exchange Rate can be determined by reference to the applicable Telerate
screen or another publicly available service for displaying exchange rates
agreed upon by the Agent and such Borrower, or quoted by the Multicurrency
Reference Banks; provided, however, that if and to the extent that any EMU
Legislation provides that following the Commencement of the Third Stage of EMU
an amount denominated either in Euro or in the National Currency Unit of a
Participating Member State and payable within that Participating Member State by
crediting an account of the creditor can be paid by the debtor in either the
Euro Unit or in that National Currency Unit, "Eligible Currency" shall also
include such Euro Unit and National Currency Unit and the Borrowers shall be
entitled under this Agreement to pay or repay any such amount either in the Euro
Unit or in such National Currency Unit.
"EMU" means Economic and Monetary Union as contemplated in the
Treaty on European Unions.
"EMU Legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the Euro or otherwise), being in
part the implementation of the third stage of EMU.
"Environmental Claims" means all actions, suits, proceedings
or claims by any Governmental Authority or other Person alleging potential
liability or responsibility for violation of any Environmental Law or for
release or injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages (punitive
or otherwise), cleanup, removal, remedial or response costs, restitution, civil
or criminal penalties, injunctive relief, or other type of relief, resulting
8
from or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from property,
whether or not owned by any Borrower, or (b) any other circumstances forming the
reasonable basis of any violation, or alleged violation, of any Environmental
Law.
"Environmental Law" has the meaning specified in the
definition of "Hazardous Material".
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated thereunder as from
time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with New USI or any of its Subsidiaries
within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and
(o) for purposes of provisions relating to Sections 412, 414(t)(2) and 4971 of
the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan or a Multiemployer Plan which could reasonably be expected to
result in a material liability to New USI; (b) a withdrawal by New USI or any
ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations which is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal
by New USI or any ERISA Affiliate from a Multiemployer Plan which could
reasonably be expected to result in a material liability to New USI or
notification that a Multiemployer Plan is insolvent or in reorganization; (d)
the filing of a notice of intent to terminate other than a standard termination
pursuant to Section 4041(b) of ERISA where such standard termination or the
process of affecting such standard termination will not result in a material
liability to New USI or an ERISA Affiliate, the treatment of a plan amendment as
a termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) a
failure by New USI or any ERISA Affiliate to make required contributions to a
Pension Plan, Multiemployer Plan or other Plan subject to Section 412 of the
Code; (f) an event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the
imposition of any material liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon New USI or any
ERISA Affiliate; or (h) an application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code with respect to any
Plan.
"Euro" means the single currency of Participating Member
States of the European Union.
"Euro Unit" means the currency unit of the Euro.
9
"Eurodollar Auction" means a solicitation of Competitive Bids
setting forth a Eurodollar Bid Margin pursuant to Section 2.06.
"Eurodollar Bid Loan" means any Bid Loan that bears interest
at a rate based on LIBOR.
"Eurodollar Bid Margin" has the meaning specified in Section
2.06(c)(ii)(C).
"Eurodollar Committed Loan" means a Committed Loan that bears
interest based on LIBOR.
"Eurodollar Lending Office" has the meaning specified in the
definition of "Lending Office".
"Eurodollar Loan" means any Eurodollar Committed Loan,
Eurodollar Multicurrency Loan or Eurodollar Bid Loan.
"Eurodollar Multicurrency Loan" means any Multicurrency Loan
bearing interest at a rate determined by reference to LIBOR in accordance with
the provisions of Article II.
"Event of Default" means any of the events or circumstances
specified in Section 9.01.
"Exchange Rate" means, with respect to any Eligible Currency
on a particular date, the rate at which such Eligible Currency may be exchanged
into Dollars, as set forth on such date at 11:00 A.M., London time on the
applicable Telerate screen for such Eligible Currency. In the event that such
rate does not appear on such Telerate screen, the Exchange Rate with respect to
such Eligible Currency shall be determined by reference to such other publicly
available service for displaying exchange rates as may be agreed upon by the
Agent and the Borrowers or quoted by the Multicurrency Reference Banks, or, in
the absence of such agreement or quotation, such Exchange Rate shall instead be
the arithmetic average of the spot rates of exchange of the Agent in the market
where its foreign currency exchange operations in respect of such Eligible
Currency are then being conducted, at or about 11:00 A.M., London time, at such
date for the purchase of Dollars with such Eligible Currency for delivery two
Business Days later, provided, however, that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the Agent may
use any reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"Existing Credit Agreement" means the Credit Agreement, dated
as of May 12, 1995, and amended and restated as of December 21, 1995, among the
Company, USI Funding, the Parent, the several financial institutions party
thereto, Bank of America, Illinois, as Issuing Bank and Swingline Bank, Bank of
America National Trust and Savings Association, as Agent, and BA Securities,
Inc., as Arranger, as amended, modified or supplemented through the Amendment
Effective Date.
10
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day the appropriate rate for such previous day
is not yet published in H.15(519), the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight federal funds arranged
prior to 9:00 A.M. (New York City time) on that day by each of three leading
brokers of federal funds transactions in New York City selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any successor thereto.
"Form 4224" has the meaning specified in Section 4.01(f).
"Form 1001" has the meaning specified in Section 4.01(f).
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
accounting profession), or in such other statements by such other entity as may
be in general use by significant segments of the U.S. accounting profession,
which are applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranteed Obligations" means (i) with respect to Old USI as
a Guarantor Party, all Obligations of the Borrowers under this Agreement and the
other Loan Documents, and (ii) with respect to New USI as a Guarantor Party, all
Obligations of the Company under this Agreement and the other Loan Documents.
"Guaranteed Party" means (i) with respect to Old USI as a
Guarantor Party, the Borrowers, and (ii) with respect to New USI as a Guarantor
Party, the Company.
"Guarantor Party" means, with respect to its obligations under
Article X of this Agreement, each of Old USI and New USI.
"Guaranty Obligation" means, as applied to any Person, any
direct or indirect liability of that Person with respect to any Indebtedness,
lease, dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person, whether or not contingent, (a) to purchase,
repurchase or otherwise acquire such primary obligations or any property
constituting direct or indirect security therefor; (b) to advance or provide
funds (i) for the payment or discharge of any such primary obligation, or (ii)
11
to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor; (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation; or (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof; in
each case, including arrangements wherein the rights and remedies of the holder
of the primary obligation are limited to repossession or sale of certain
property of such Person. The amount of any Guaranty Obligation shall be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made (or if less, the stated or
determinable amount of such Guaranty Obligation) or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ PLC, a public limited company
incorporated in England and Wales.
"Hazardous Material" means and includes (a) any asbestos,
urea-formaldehyde, PCBs or dioxins or insulation or other material composed of
or containing asbestos, PCBs or dioxins, (b) crude oil, any fraction thereof,
and any petroleum product, (c) any natural gas, natural gas liquids, liquefied
natural gas or other natural gas product or synthetic gas and (d) any hazardous
or toxic waste, substance or material or pollutant or contaminant defined as
such in (or for purposes of) or that may result in the imposition of liability
under any "Environmental Law", defined as the Comprehensive Environmental
Response, Compensation and Liability Act, any so-called "Superfund", or any
other applicable Federal, state, local or other statute, law, ordinance, code,
rule, regulation, order or decree, as now or at any time hereafter in effect,
regulating, relating to, or imposing liability concerning the environment, the
impact of the environment on human health, or any hazardous or toxic waste,
substance or material or pollutant or contaminant.
"IBOR" means for each Interest Period for a Swingline Loan the
rate of interest per annum at which Dollar deposits in the approximate amount of
such Swingline Loan and having a maturity comparable to such Interest Period
would be offered by Bank of America to major banks in the offshore dollar
interbank market upon request of such banks at the time such request is received
by the Agent on the first day of such Interest Period.
"IBOR Loan" means a Swingline Loan that bears interest based
on IBOR.
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than (i)
trade payables entered into in the ordinary course of business pursuant to
ordinary terms and (ii) ordinary course purchase price adjustments); (c) all
reimbursement or payment obligations with respect to letters of credit or
non-contingent reimbursement or payment obligations with respect to bankers'
acceptances, surety bonds and similar documents (other than bonds issued to
secure performance of tenders, statutory obligations, losses, and contracts
entered into in the ordinary course of business); (d) all obligations evidenced
12
by notes, bonds, debentures or similar instruments, including obligations so
evidenced incurred in connection with the acquisition of property, assets or
businesses; (e) all indebtedness created or arising under any conditional sale
or other title retention agreement or sales of accounts receivable, in any such
case with respect to property acquired by the Person (even though the rights and
remedies of the seller or bank under such agreement in the event of default are
limited to repossession or sale of such property); (f) all Capital Lease
Obligations; (g) all net obligations with respect to Interest Rate Protection
Agreements; (h) all indebtedness referred to in clauses (a) through (g) above
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness;
and (i) all Guaranty Obligations in respect of obligations of the kinds referred
to in clauses (a) through (g) above.
"Indemnification Agreement" means each of the Indemnification
Agreements executed and delivered by the parties thereto substantially in the
form attached to the related Demerger Transaction Documents.
"Indemnified Liabilities" has the meaning specified in Section
12.05.
"Indemnified Person" has the meaning specified in Section
12.05.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the benefit
of creditors, composition, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally; in each case
undertaken under U.S. Federal, State or foreign law, including the Bankruptcy
Code.
"Interest Payment Date" means, (a) with respect to any Base
Rate Committed Loan or Swingline Loan, the fifteenth day of the last calendar
month of each calendar quarter and the Termination Date, (b) with respect to any
Eurodollar Committed Loan, the last day of each Interest Period applicable to
such Eurodollar Committed Loan and the date such Eurodollar Committed Loan is
repaid or prepaid, (c) with respect to any Eurodollar Multicurrency Loan, the
last day of each Interest Period applicable to such Eurodollar Multicurrency
Loan; provided, however, that if any Interest Period for any Eurodollar
Committed Loan or Eurodollar Multicurrency Loan exceeds three months, then also
the date which falls three months after the beginning of such Interest Period
and, if applicable, at three month intervals thereafter shall also be an
"Interest Payment Date" and (d) with respect to any Bid Loan, the last day of
the applicable Interest Period and such intervening dates prior to the maturity
thereof as may be specified by the relevant Borrower and agreed to by the
applicable Bid Loan Lender in the applicable Competitive Bid.
"Interest Period" means (a) in relation to any Eurodollar
Loan, the period commencing on the applicable Borrowing Date or (in the case of
any Eurodollar Committed Loan) any Conversion Date or Continuation Date with
respect thereto and ending on the date one, two, three or six months (and, in
13
the case of Eurodollar Bid Loans, four or five months) thereafter (or, in the
case of Eurodollar Committed Loans, if the applicable Borrowing Date, Conversion
Date or Continuation Date occurs prior to December 12, 1997, such period
consisting of less than three months as the relevant Borrower may select (a
"Non-Standard Interest Period")), as selected or deemed selected by the relevant
Borrower in its Notice of Borrowing, Notice of Conversion/Continuation or
Competitive Bid Request; (b) in relation to any IBOR Loan, the period commencing
on the Borrowing Date with respect thereto and ending on the date one, two or
three weeks thereafter as selected by the relevant Borrower in its request for
IBOR Loans; and (c) as to any Absolute Rate Bid Loan, a period of not less than
14 days and not more than 365 days as selected by the relevant Borrower in the
applicable Competitive Bid Request; provided that:
(i) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end
on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
the calendar month which is one, two, three or six months (or
in the case of IBOR Loans, shall end on the day that is one,
two or three weeks after the Borrowing Date with respect
thereto), as the case may be, after the calendar month in
which such Interest Period began;
(iii) no Interest Period for any Loan shall extend beyond the
Termination Date; and
(iv) the Borrowers shall select, in the aggregate, no more
than ten Non-Standard Interest Periods.
"Interest Rate Protection Agreement" means an interest rate
swap, cap, collar or similar arrangement entered into to hedge interest rate
risk (and not for speculative purposes).
"Issuing Bank" means Bank of America National Trust and
Savings Association or any Affiliate thereof in its capacity as issuer of one or
more Letters of Credit hereunder.
"Judgment Currency" has the meaning specified in Section
12.16(b).
"Lending Office" means, with respect to any Bank, the office
or offices of such Bank specified as its "Lending Office", "Domestic Lending
Office" or "Eurodollar Lending Office", as the case may be, on Schedule 1.01(a)
hereto, or such other office or offices of the Bank as it may from time to time
notify each of New USI, the Company and the Agent.
14
"Letter of Credit" means any letter of credit issued by the
Issuing Bank pursuant to Article III.
"Letter of Credit Amendment Application" means an application
form for amendment of outstanding standby or commercial documentary letters of
credit as shall at any time be in use by the Issuing Bank, as the Issuing Bank
shall request.
"Letter of Credit Application" means an application form for
issuances of standby or commercial documentary letters of credit as shall at any
time be in use at the Issuing Bank, as the Issuing Bank shall request.
"Letter of Credit Borrowing" means an extension of credit
resulting from a drawing under any Letter of Credit which shall not have been
reimbursed on the Disbursement Date when made nor converted into a Committed
Borrowing under Section 3.03(b).
"Letter of Credit Commitment" means the commitment of the
Issuing Bank to issue Letters of Credit, the Letter of Credit Obligations in
respect thereof not to exceed in aggregate amount on any date the lesser of (i)
the Aggregate Commitment on such date and (ii) $50,000,000.
"Letter of Credit Obligations" means at any time the sum of
(a) the aggregate undrawn amount of all Letters of Credit then outstanding, plus
(b) the amount of all outstanding Letter of Credit Borrowings.
"Letter of Credit Related Documents" means the Letters of
Credit, the Letter of Credit Applications, the Letter of Credit Amendment
Applications and any other document relating to any Letter of Credit, including
any of the Issuing Bank's standard form documents for letter of credit
issuances.
"Leverage Ratio Certificate" means a certificate duly executed
by a Responsible Officer of New USI, substantially in the form of Exhibit E
(with such changes thereto as may be agreed upon from time to time by the Agent
and New USI), and including therein, among other things, calculations supporting
the information contained therein.
"LIBOR" means, for each Interest Period for Eurodollar Loans
comprising the same Borrowing, the rate of interest per annum determined by the
Agent to be the arithmetic mean (rounded upward to the nearest whole multiple of
1/16th%) of the rates of interest per annum notified to the Agent by (i) each
Reference Bank as the rate at which Dollar deposits or (ii) each Multicurrency
Reference Bank as the rate at which the applicable Eligible Currency deposits,
as the case may be, for such Interest Period would be offered, or in the case of
a Non-Standard Interest Period that is greater than one month the rate at which
Dollar or the applicable Eligible Currency deposits for a three month Interest
Period would be offered, or in the case of a Non-Standard Interest Period that
is less than one month, the rate at which Dollar or the applicable Eligible
Currency deposits for a one month Interest Period would be offered, and in an
amount approximately equal to the amount of the Eurodollar Loan of such
Reference Bank or Multicurrency Reference Bank, as the case may be, during such
15
Interest Period would be offered by its Eurodollar Lending office to major banks
in the London interbank market at or about 11:00 A.M. (London time) on the
Second Business Day prior to the commencement of such Interest Period (or, in
the case of a Multicurrency Loan in Pounds Sterling, on the Business Day of the
commencement of such Interest Period).
"Lien" means any interest in any real or personal property or
fixture which secures payment or performance of any obligation and shall include
any mortgage, lien, pledge, encumbrance, charge or other security interest of
any kind, whether arising under a Security Instrument or as a matter of law,
judicial process or otherwise, including the retained security title of a
conditional vendor or lessor.
"Loan" means an extension of credit by a Bank to a Borrower
pursuant to Article II and shall include Committed Loans, Swingline Loans,
Multicurrency Loans and Bid Loans.
"Loan Documents" means this Agreement (including the guaranty
set forth in Article X) and all other agreements, instruments, certificates or
other documents evidencing the Loans, Letter of Credit Borrowings or the other
obligations of Old USI or any Borrower hereunder.
"Majority Banks" means at any time Banks holding more than
50% of the then Aggregate Commitment, provided that if the Commitments shall
have been terminated in full, "Majority Banks" shall mean Banks holding
(including as a result of participations pursuant to Sections 2.01(b)(iv), and
3.03(a) and (d)) more than 50% of the then aggregate unpaid amount of the Total
Exposure.
"Majority Multicurrency Banks" means at any time Multicurrency
Banks holding more than 50% of the then Total Multicurrency Commitment, provided
that if the Multicurrency Commitments shall have been terminated in full,
"Majority Multicurrency Banks" shall mean Multicurrency Banks holding more than
50% of the then aggregate unpaid amount of all outstanding Multicurrency Loans.
"Margin Stock" means "margin stock" as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means, relative to any occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding), a material adverse
effect on the operations, business, assets, properties, condition (financial or
otherwise) or prospects of (i) New USI and its Subsidiaries taken as a whole or
(ii) the Company and its Subsidiaries taken as a whole.
"Material Subsidiary" of a Person means any Subsidiary
representing 5% or more of the consolidated gross assets of such Person, as
shown on the most recently prepared audited consolidated financial statements of
such Person and its consolidated Subsidiaries (calculated on a pro forma basis
after giving effect to the Mergers). Solely for purposes of determining whether
a Subsidiary represents 5% or more of such consolidated gross assets, such
Subsidiary shall be deemed to own the consolidated gross assets of its
Subsidiaries in which it owns, directly or indirectly, at least 51% of the
combined voting power of its then outstanding securities entitled to vote
generally in the election of directors.
16
"Measurement Period" means any period of four consecutive
fiscal quarters of New USI provided that for all quarters prior to the Mergers,
the Measurement Period shall be the fiscal quarters of Old USI.
"Mergers" means the mergers of Blue Merger Corp. with and into
Old USI and Zoro Merger Corp. with and into ▇▇▇▇ pursuant to the Merger
Documents, with each of Old USI and ▇▇▇▇ to become Wholly-Owned Subsidiaries of
New USI.
"Merger Documents" means and includes (i) the Agreement and
Plan of Merger, dated as of February 16, 1998, as amended, among New USI, Old
USI, Blue Merger Corp., Zoro Merger Corp. and ▇▇▇▇, as the same may be amended,
modified or supplemented from time to time pursuant to the terms thereof and
(ii) all other agreements and instruments governing the Mergers.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its
successors.
"Multicurrency Bank" means any Bank (or any Affiliate, branch
or agency thereof) that has a Multicurrency Commitment, as set forth on Schedule
1.01(b), as amended from time to time.
"Multicurrency Borrowing" means a Borrowing comprised of
Multicurrency Loans.
"Multicurrency Commitment" means, with respect to each
Multicurrency Bank, the commitment of such Bank (expressed in Dollars) to make
Multicurrency Loans hereunder as set forth on Schedule 1.01(b) under the heading
"Multicurrency Commitments", as the same may be permanently terminated or
reduced or increased from time to time pursuant to Section 2.01(c)(ii), Section
2.07, Section 2.08 or Article IX or increased or reduced from time to time
pursuant to assignments under Section 12.06.
"Multicurrency Commitment Percentage" means, as to any
Multicurrency Bank, the percentage equivalent of such Bank's Multicurrency
Commitment divided by the Multicurrency Commitments of all the Multicurrency
Banks, provided that if the Multicurrency Commitments have been terminated in
full the "Multicurrency Commitment Percentage" of each Multicurrency Bank shall
be determined by dividing such Bank's Multicurrency Commitment immediately prior
to such termination by all the Multicurrency Banks' Multicurrency Commitments
immediately prior to such termination.
"Multicurrency Loan" means any loan denominated in an Eligible
Currency and made pursuant to Section 2.01(c).
17
"Multicurrency Loan Exposure" means, with respect to any Bank
at any time, an amount equal to such Bank's Commitment Percentage of the Dollar
Equivalent of the aggregate principal amount of the outstanding Multicurrency
Loans.
"Multicurrency Reference Banks" means Bank of America, London
branch, Deutsche Bank AG, London branch, and The Chase Manhattan Bank, London
branch.
"Multiemployer Plan" means a "multiemployer plan" (within the
meaning of Section 4001(a)(3) of ERISA) and to which New USI or any ERISA
Affiliate makes, is making, or is obligated to make contributions or, during the
preceding three calendar years, has made, or been obligated to make,
contributions.
"National Currency Unit" means the unit of currency (other
than the Euro Unit) of a Participating Member State.
"Negotiated Rate" means an interest rate agreed upon by the
relevant Borrower and the Swingline Bank for a negotiated interest period.
"Negotiated Rate Loan" means a Swingline Loan that bears
interest at the Negotiated Rate for an interest period (not to exceed 30 days)
to be agreed upon by the relevant Borrower and the Swingline Bank.
"Net Income" means, for any Measurement Period, the net income
(or net loss) of New USI and its Subsidiaries for such period on a consolidated
basis in accordance with GAAP.
"Net Interest Expense" means, for any Measurement Period:
(a) the aggregate amount of interest expense of New USI and
its consolidated Subsidiaries for such period, as determined
on a consolidated basis in accordance with GAAP:
less
(b) the sum for such period of:
(i) the aggregate interest income of New USI and its
consolidated Subsidiaries, as determined in accordance with
GAAP; and
(ii) the amortization of all fees (including, other than in
connection with a calculation of the Consolidated Leverage
Ratio, upfront costs and expenses under Interest Rate
Protection Agreements fairly allocated to such Interest Rate
Protection Agreements as expenses for such period) payable in
connection with the incurrence of Indebtedness to the extent
included in interest expense.
"Net Worth" means, at any time, all amounts which, in
accordance with GAAP, would be included under shareholders' equity on a
18
consolidated balance sheet of New USI and its Subsidiaries, without giving
effect to (i) foreign currency translations and (ii) non-cash effects resulting
from changes in GAAP after the Effective Date.
"New USI" has the meaning set forth in the preamble hereto.
"Non-Standard Interest Period" has the meaning specified in
the definition of "Interest Period".
"Notice of Borrowing" means a notice given by the relevant
Borrower to the Agent pursuant to Section 2.03(a), in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice given by
the relevant Borrower to the Agent pursuant to Section 2.04(c), in substantially
the form of Exhibit B.
"Obligations" means all Loans, Letter of Credit Borrowings and
other indebtedness, advances, debts, liabilities, obligations, expenses
(including, without limitation, Attorney Costs), covenants and duties, of any
kind or nature, owing by Old USI or any Borrower to any Bank (or any Bank
Affiliate (or any Affiliate of such Bank engaged in capital market transactions
generally)), the Agent, the Issuing Bank or the Swingline Bank in connection
with (a) this Agreement, or (b) any other Loan Document, or in each case whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, and however acquired (including those acquired by
assignment) or arising and whether or not for the payment of money or evidenced
by any note, guarantee or other instrument.
"OECD" means the Organization for Economic Cooperation and
Development.
"Old USI" has the meaning specified in the preamble hereto.
"Originating Bank" has the meaning specified in Section
12.07(d).
"Other Taxes" has the meaning specified in Section 4.01(b).
"Participant" has the meaning specified in Section 12.07(d).
"Participating Member State" means each state so described in
any EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which New USI or any ERISA Affiliate
sponsors or maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a multiple employer plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five (5) plan years, but excluding any Multiemployer Plan.
"Permitted Liens" has the meaning specified in Section 8.01.
19
"Person" means any natural person, corporation, firm, trust,
partnership, business trust, association, government, governmental agency or
authority, or any other entity, whether acting in an individual, fiduciary, or
other capacity.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which New USI or any ERISA Affiliate sponsors or maintains or to
which New USI or any ERISA Affiliate makes, is making, or is obligated to make
contributions and includes any Pension Plan or Multiemployer Plan.
"Qualified Preferred Stock" means any pay-in-kind preferred
stock of New USI, or any other preferred stock of New USI which, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (including an event which
would constitute a Change of Control), cannot mature (excluding any maturity as
the result of an optional redemption by the issuer thereof) and is not
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, and
is not redeemable, or required to be repurchased, at the sole option of the
holder thereof (including, without limitation, upon the occurrence of an event
which would constitute a Change of Control), in whole or in part, on or prior to
the first anniversary of the Termination Date then in effect.
"Receivables Sale" means any Asset Sale consisting of the sale
of accounts or notes receivable and associated assets, other than any such sale
in bulk as part of a sale or other disposition of all or substantially all of
the assets or stock of any Person or of any principal division or lines of
business of any Person.
"Receivables Sale Amount" means in the case of a single sale
of receivables, the cash proceeds received by the transferor, and, in the case
of a revolving receivables sales facility, the cash proceeds received by the
seller representing incremental new funding in excess of any previous level of
funding made available under such facility, net of repayments of Indebtedness or
repurchases under, or proceeds otherwise required to refinance, any previous
receivables sales facility.
"Reference Banks" means Bank of America, The Chase Manhattan
Bank and Citibank, N.A.
"Reference Rate" means the rate of interest publicly announced
from time to time by Bank of America in San Francisco as its "reference rate".
It is a rate set by Bank of America based upon various factors, including Bank
of America's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above or below such announced rate. Any change in the Reference Rate
announced by Bank of America shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Replaced Bank" has the meaning specified in Section 4.08(b).
"Replacement Bank" has the meaning specified in Section
4.08(b).
20
"Reportable Event" means, any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been waived in
regulations issued by the PBGC.
"Requested Extension Effective Date" has the meaning specified
in Section 2.19.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of a court or
of a Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Reset Date" has the meaning specified in Section 1.04(a).
"Responsible Officer" means, for New USI, Old USI, the Company
or any Subsidiary thereof, its chief executive officer, its president, any
vice-president, its chief financial officer, controller, treasurer or assistant
treasurer, or any other officer having substantially the same authority and
responsibility.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Sale and Leaseback Transaction" means any arrangement,
directly or indirectly, with any Person whereby a seller or transferor shall
sell or otherwise transfer any real or personal property and then or thereafter
lease, or repurchase under an extended purchase contract, conditional sales or
other title retention agreement, the same or similar property.
"Scheduled Commitment Reduction Date" has the meaning
specified in Section 2.08(c).
"Secured Obligations" has the meaning specified in Section
8.01(l).
"Security Instrument" means any security agreement, chattel
mortgage, assignment, pledge agreement, financing or similar statement or
notice, continuation statement, other agreement or instrument, or amendment or
supplement to any thereof, providing for, evidencing or perfecting any security
interest.
"Senior Note Change of Control" means a "Change of Control"
under, and as defined in, the Senior Notes Indenture.
"Senior Notes" mean the 7 1/4% Senior Notes due December 1,
2006 originally issued by the Company as sole primary obligor, but which in
connection with the Mergers, will be assumed by New USI as a joint and several
co-obligor with the Company, as in effect on the Effective Date and after giving
effect to any changes, amendments or supplements thereto (and shall include any
Senior Notes into which the Senior Notes are exchanged pursuant to the Senior
Notes Documents).
21
"Senior Notes Documents" mean and include each of the Senior
Notes, the Senior Notes Indenture and all securities purchase agreements and
other documents and agreements related thereto, as in effect on the Effective
Date and after giving effect to any changes, amendments or supplements thereto.
"Senior Notes Indenture" means that certain Indenture, dated
as of December 12, 1996, between the Company and PNC Bank, National Association,
as Trustee, as amended pursuant to the Supplemental Indenture, dated as of June
11, 1998 and as the same may be amended, modified, extended, renewed, replaced,
restated or supplemented from time to time pursuant to the terms thereof and
hereof.
"Subscription Agreement" means the Subscription Agreement,
substantially in the form delivered to the Agent prior to the Effective Date.
"Subsidiary" of a Person means any corporation, association,
partnership or other business entity of which more than 50% of the voting stock
or other equity interests (in the case of Persons other than corporations) is
owned or controlled directly or indirectly by such Person, or one or more of the
Subsidiaries of the Person, or a combination thereof; provided that Jade
Technologies Inc. ("Jade") and each of its Subsidiaries shall not be deemed to
be a Subsidiary of the Company, Old USI or New USI for purposes of Article VI
and Section 8.01, 8.02, 8.03, 8.04, 8.05, 8.07, 8.09, 9.01(e), 9.01(f), 9.01(g)
and 9.01(i).
"Swingline Amount" means an aggregate amount of $50,000,000.
"Swingline Bank" means Bank of America National Trust and
Savings Association.
"Swingline Borrowing" means a Borrowing of a Swingline Loan
hereunder on any Borrowing Date.
"Swingline Loan" means a Loan by the Swingline Bank to any
Borrower pursuant to Section 2.01(b).
"Taxes" has the meaning specified in Section 4.01(a).
"Termination Date" means the earlier to occur of: (a) December
12, 2001, as same may be extended pursuant to Section 2.19; and (b) the date on
which the Commitments shall terminate in accordance with the provisions of this
Agreement.
"Total Exposure" means the sum of all outstanding Loans and
Letter of Credit Obligations.
"Total Funded Debt" means (a) all Loans and Letter of Credit
Borrowings and (b) all other Indebtedness for borrowed money of New USI and its
Subsidiaries (including the current portion of all such Indebtedness).
22
"Total Multicurrency Commitment" means, at any time, the
lesser of (a) the Aggregate Commitment at such time and (b) the sum of the
Multicurrency Commitments of the Multicurrency Banks at such time.
"Transferee" has the meaning specified in Section 12.08.
"Treaty on European Union" means the Treaty of Rome dated
March 25, 1957, as amended by the single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht
Treaty (which was signed at Maastricht on February 1, 1992 and came into force
on November 1, 1993), as amended from time to time.
"Type" has the meaning specified in the definition of
"Committed Loan".
"Unfunded Pension Liability" means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of that Plan's assets, determined in accordance with the assumptions used
for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"United States" and "U.S." each means the United States of
America.
"USI Funding" has the meaning specified in the preamble
hereto.
"Wholly-Owned Subsidiary" means, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's or other
qualifying shares) is at the time owned by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person and (ii) any partnership, association
or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
"▇▇▇▇" means ▇▇▇▇ Industries, Inc., a Pennsylvania
corporation.
1.02 Other Definitional Provisions.
(a) Defined Terms. Unless otherwise specified herein or
therein, all terms defined in this Agreement shall have such defined meanings
when used in any certificate or other document made or delivered pursuant
hereto. The meaning of defined terms shall be equally applicable to the singular
and plural forms of the defined terms.
(b) The Agreement. The words "hereof", "herein", "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
section, subsection, schedule and exhibit references are to this Agreement
unless otherwise specified.
(c) Certain Common Terms.
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
23
(ii) The terms "including" or "include" are not limiting and
mean "including without limitation" or "include without limitation".
(d) Performance; Time. Subject to the definition of the term
"Interest Period" in Section 1.01, whenever any performance obligation hereunder
shall be stated to be due or required to be satisfied on a day other than a
Business Day, such performance shall be made or satisfied on the next succeeding
Business Day. In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words "to"
and "until" each mean "to but excluding", and the word "through" means "to and
including." If any provision of this Agreement refers to any action taken or to
be taken by any Person, or which such Person is prohibited from taking, such
provision shall be interpreted to encompass any and all means, direct or
indirect, of taking, or not taking, such action.
(e) Contracts. Unless otherwise expressly provided herein,
references to agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto, but only to
the extent such amendments and other modifications are not prohibited by the
terms of any Loan Document.
(f) Laws. References to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending or replacing such statute or regulation.
1.03 Accounting Principles. Except as provided to the contrary
herein, all accounting terms used herein shall be interpreted in accordance with
GAAP. Unless the context otherwise clearly requires, all financial computations
required under this Agreement shall be made in accordance with GAAP; provided
that, if New USI notifies the Agent that New USI wishes to amend any covenant in
Article VIII or the definition of any term used therein to eliminate the effect
of any change in GAAP occurring after the Amendment Effective Date or the
operation of such covenant (or if the Agent notifies New USI that the Majority
Banks wish to amend Article VIII or any such definition for such purpose), then
New USI's compliance with such covenant shall be determined on the basis of GAAP
in effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant or definition is amended in a
manner satisfactory to New USI and the Majority Banks.
1.04 Exchange Rates. (a) Not later than 1:00 P.M. (New York
City time), on each Calculation Date, the Agent shall (i) determine the Exchange
Rate as of such Calculation Date with respect to each Eligible Currency and (ii)
give notice thereof to the Banks and the Borrowers. The Exchange Rates so
determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a "Reset Date"), shall remain effective
until the next succeeding Reset Date, and shall for all purposes of this
Agreement (other than Section 2.01(a), Section 2.01(b)(i), Section 2.01(c)(i),
Section 2.01(c)(ii), Section 12.16 or any other provision expressly requiring
the use of a current Exchange Rate) be the Exchange Rates employed in converting
any amounts between Dollars and Eligible Currencies.
(b) Not later than 5:00 P.M. (New York City time) on each
Reset Date and each Borrowing Date, the Agent shall (i) determine the Dollar
24
Equivalent of the aggregate principal amount of the Multicurrency Loans then
outstanding (after giving effect to any Multicurrency Loans to be made or repaid
on such date) and (ii) notify the Banks and the Borrowers of the results of such
determination.
ARTICLE II.
THE CREDIT FACILITIES
2.01 Amounts and Terms of Commitments.
(a) The Committed Loans. Each Bank severally agrees, on the
terms and conditions hereinafter set forth, to make Committed Loans to any
Borrower from time to time on any Business Day during the period from the
Effective Date to the Termination Date, in an aggregate amount not to exceed at
any time outstanding the amount of such Bank's Commitment; provided, however,
that, after giving effect to any Committed Borrowing (and to any concurrent
repayment or prepayment of Loans), (i) the aggregate principal amount of all
outstanding Committed Loans together with (w) the aggregate principal amount of
all outstanding Swingline Loans, plus (x) the aggregate principal amount of all
outstanding Bid Loans, plus (y) the Dollar Equivalent of the aggregate principal
amount of all outstanding Multicurrency Loans, plus (z) all outstanding Letter
of Credit Obligations, shall not exceed the Aggregate Commitment, (ii) the sum
of the Committed Loan Exposure and the Multicurrency Loan Exposure of any Bank
shall not exceed such Bank's Commitment or (iii) the Dollar Equivalent of the
aggregate principal amount of the Multicurrency Loans outstanding shall not
exceed the Total Multicurrency Commitment. Within such limits, and subject to
the other terms and conditions hereof, each Borrower may borrow Committed Loans
under this Section 2.01(a), prepay pursuant to Section 2.09 or 2.10(a) and
reborrow pursuant to this Section 2.01(a).
(b) The Swingline Loans. (i) The Swingline Bank agrees, on the
terms and conditions hereinafter set forth, to make Swingline Loans to any
Borrower on any Business Day during the period from the Effective Date to the
Termination Date, in an aggregate amount not to exceed at any time outstanding
the Swingline Amount; provided, however, that (A) on the Effective Date the
Swingline Bank shall be permitted to make a Swingline Loan up to an amount equal
to the Aggregate Commitment provided that any Interest Period related thereto
shall not exceed one week) and (B) that after giving effect to any Swingline
Borrowing (and to any concurrent repayment or prepayment of Loans), (i) the
aggregate principal amount of all outstanding Swingline Loans together with (w)
the aggregate principal amount of all outstanding Committed Loans, plus (x) the
aggregate principal amount of all outstanding Bid Loans, plus (y) the Dollar
Equivalent of the aggregate principal amount of all outstanding Multicurrency
Loans, plus (z) all outstanding Letter of Credit Obligations, shall not exceed
the Aggregate Commitment, (ii) the sum of the Committed Loan Exposure and the
Multicurrency Loan Exposure of any Bank shall not exceed such Bank's Commitment
or (iii) the Dollar Equivalent of the aggregate principal amount of the
Multicurrency Loans outstanding shall not exceed the Total Multicurrency
Commitment. Within such limits, and subject to the other terms and conditions
hereof, each Borrower may borrow Swingline Loans under this Section 2.01(b),
repay pursuant to Section 2.11(b) or prepay pursuant to Section 2.09 or 2.10(a)
and reborrow pursuant to this Section 2.01(b).
25
(ii) The Swingline Bank shall not be responsible for or liable
to any Bank for determining whether (A) any representation or warranty of any
Borrower in connection with any request for a Swingline Loan is correct or (B)
any Default or Event of Default exists or would result from the making of any
such Swingline Loan; provided, however, that the Swingline Bank shall not make
any Swingline Loan after receiving a written notice from any Borrower or any
Bank stating that a Default or an Event of Default exists and is continuing
until such time as the Swingline Bank shall have received written notice from
the Agent that such Default or Event of Default has been cured or waived.
(iii) Each Swingline Loan shall reduce the available Aggregate
Commitment. It is understood that the aggregate principal amount of Swingline
Loans at any time outstanding may exceed the otherwise unutilized portion of the
Commitment of the Swingline Bank.
(iv) Upon demand by the Swingline Bank, the relevant Borrower
shall promptly borrow Committed Loans from all the Banks pursuant to Section
2.01(a) in an aggregate principal amount equal to the principal amount of
outstanding Swingline Loans made to such Borrower, and such Borrower and the
Banks hereby irrevocably authorize the Agent to apply the proceeds of such
Committed Loans to the repayment of such Swingline Loans (and solely for the
purpose of such a Borrowing (x) the conditions precedent set forth in Section
5.02 need not be met, (y) the minimum borrowing denominations set forth in
Section 2.03(a) need not be met and (z) the borrowing limitations set forth in
this Agreement need not be met to the extent the Aggregate Commitment has been
terminated or reduced after the making of Swingline Loans which are so being
repaid). If any Borrower fails to repay any Swingline Loan within one Business
Day after such a demand, or to repay any Swingline Loan when due, then each Bank
shall irrevocably and unconditionally purchase from the Swingline Bank, without
recourse or warranty, an undivided interest and participation in such Swingline
Loan in an amount equal to such Bank's Commitment Percentage, by forthwith
paying such amount to the Swingline Bank in Dollars and in immediately available
funds, and such payment shall be made (A) whether or not a Default or an Event
of Default is then continuing (including any Event of Default under Sections
9.01(f) and (g)) or any other condition precedent set forth in Section 5.02 is
then met, (B) whether or not such Borrower has requested a Borrowing or (C)
whether or not the Aggregate Commitment has been terminated or reduced below the
amount of such Swingline Loan prior to the time of such payment. If such amount
is not paid to the Swingline Bank by any Bank, the Swingline Bank shall be
entitled to recover such amount on demand from such Borrower or such Bank,
together with accrued interest thereon from the date of demand therefor (if made
prior to 12:00 Noon (New York City time) on any Business Day (or, if made at a
later time on a Business Day or on a day which is not a Business Day, from the
next Business Day until the date such amount is paid to the Swingline Bank by
such Bank at the Federal Funds Rate for the first three Business Days and
thereafter at the Base Rate. The failure of any Bank to pay such amount to the
Swingline Bank shall not relieve any other Bank of its obligation to make the
payment to be made by it.
(c) The Multicurrency Loans. (i) Each Multicurrency Bank
severally agrees, on the terms and conditions hereinafter set forth, to make
Multicurrency Loans ratably to any Borrower on any Business Day during the
26
period from the Effective Date to the Termination Date, in an aggregate amount
not to exceed at any time outstanding the amount of its Multicurrency
Commitment; provided, however, that after giving effect to any Multicurrency
Borrowing (and to any concurrent repayment or prepayment of Loans), (A) the
Dollar Equivalent of the aggregate principal amount of all outstanding
Multicurrency Loans together with (1) the aggregate principal amount of all
outstanding Committed Loans, plus (2) the aggregate principal amount of all
outstanding Swingline Loans, plus (3) the aggregate principal amount of all
outstanding Bid Loans, plus (4) all outstanding Letter of Credit Obligations,
shall not exceed the Aggregate Commitment, (B) the sum of the Committed Loan
Exposure and the Multicurrency Loan Exposure of any Bank shall not exceed such
Bank's Commitment or (C) the Dollar Equivalent of the aggregate principal amount
of the Multicurrency Loans outstanding shall not exceed the Total Multicurrency
Commitment. Within such limits, and subject to the other terms and conditions
hereof, each Borrower may borrow Multicurrency Loans under this Section 2.01(c),
repay pursuant to Section 2.11(c) or prepay pursuant to Section 2.09 or 2.10(a)
and reborrow pursuant to this Section 2.01(c).
(ii) In the event that (A) the principal of or interest on any
Multicurrency Borrowing shall not be paid within five Business Days after the
date on which it is due and any Multicurrency Bank shall deliver to the Agent a
request that the provisions of this paragraph take effect with respect to such
Borrowing or (B) the Aggregate Commitment shall be terminated or the Loans
accelerated pursuant to Article IX, then (x) the Obligations of the applicable
Borrower in respect of the principal of and interest on such Multicurrency
Borrowing shall without further action be converted into Obligations denominated
in Dollars at the applicable Exchange Rate on the date of such conversion, as
determined by the Agent, (y) such converted Obligations will bear interest at
the rate applicable to Base Rate Borrowings under Section 2.12 and (z) each Bank
shall acquire a participation in such converted Obligations in an amount equal
to its Commitment Percentage of the face amount thereof and shall pay the
purchase price therefor by wire transfer of immediately available funds in
Dollars to the Agent in the manner provided in Section 2.03(c) (and the Agent
shall promptly wire the amounts so received to the Multicurrency Banks ratably
in accordance with their respective Multicurrency Loans comprising such
Multicurrency Borrowing). Upon receipt by the Agent for the account of the
Multicurrency Banks of funds from the applicable Borrower in respect of such
Obligations, the Agent shall pay to each participating Bank ratably the amount
of such Bank's participation in such Obligations. Such acquisition in clause (z)
above shall be made (1) whether or not a Default or an Event of Default is then
continuing (including any Event of Default under Sections 9.01(f) and (g)) or
any other condition precedent set forth in Section 5.02 is then met, (2) whether
or not such Borrower has requested a Borrowing and (3) whether or not the
Aggregate Commitment has been terminated or reduced below the amount of such
Multicurrency Loan prior to the time of such payment. If such amount is not paid
to the Multicurrency Bank by any Bank, the Multicurrency Bank shall be entitled
to recover such amount on demand from such Borrower or such Bank, together with
accrued interest thereon from the date of demand therefor (if made prior to
12:00 Noon (New York City time) on any Business Day (or, if made at a later time
on a Business Day or on a day which is not a Business Day, from the next
Business Day)) until the date such amount is paid to the Multicurrency Bank by
such Bank. The failure of any Bank to pay such amount to the Multicurrency Bank
27
shall not relieve any other Bank of its obligation to make the payment to be
made by it. Upon any event specified in clause (B) above, the Multicurrency
Commitments shall be permanently terminated. The obligations of the Banks to
acquire and pay for participations in Multicurrency Borrowings pursuant to this
paragraph shall be absolute and unconditional under any and all circumstances.
(d) Joint and Several Liability. The Borrowers shall be
jointly and severally liable for all Obligations hereunder.
2.02 Loan Accounts; Notes.
(a) The Loans made by each Bank shall be evidenced by one or
more loan accounts maintained by such Bank and the Agent in the ordinary course
of business. The loan accounts maintained by the Agent shall, in the event of a
discrepancy between the entries in the Agent's books and any Bank's books
relating to such loan accounts, be controlling and, absent manifest error, shall
be conclusive as to the amount of the Loans made by the Banks to the Borrowers,
the interest and payments thereon and any other amounts owing in respect of this
Agreement. Any failure to make a notation in any such loan account or any error
in doing so shall not limit or otherwise affect the obligations of the Borrowers
hereunder to pay any amount owing with respect to the Loans.
(b) If requested by any Bank for purposes of Section 12.07(e),
the Borrowers shall execute and deliver to such Bank (and deliver a copy thereof
to the Agent) one or more promissory notes evidencing the Loans owing to such
Bank pursuant to this Agreement. Any such note shall be in a form prescribed by
the Borrowers and the Agent and shall be entitled to all of the rights and
benefits of this Agreement.
2.03 Procedure for Committed Borrowing, Swingline Borrowing
and Multicurrency Borrowing.
(a) Each Committed Borrowing (other than a Borrowing of
Committed Loans pursuant to Section 2.01(b)(iv) or Section 3.03(b)) shall be
made upon a Borrower's irrevocable written notice delivered to the Agent in
accordance with Section 12.02 in the form of a Notice of Borrowing, which notice
must be received by the Agent (i) prior to 1:00 P.M. (New York City time) not
less than three Business Days prior to the requested Borrowing Date, in the case
of Eurodollar Committed Loans; and (ii) prior to 11:00 A.M. (New York City time)
on the requested Borrowing Date, in the case of Base Rate Committed Loans,
specifying:
(A) the amount of the Committed Borrowing, which shall be in
an aggregate minimum principal amount of $5,000,000 or any
multiple of $1,000,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) whether the Committed Borrowing is to be comprised of
Eurodollar Committed Loans or Base Rate Committed Loans; and
28
(D) the duration of the Interest Period, if any, applicable to
such Committed Loans included in such notice. If the Notice of
Borrowing shall fail to specify the duration of the Interest
Period for any Borrowing comprised of Eurodollar Committed
Loans, such Interest Period shall be one month provided that
for purposes of borrowing the initial Base Rate Committed
Loans made on the Effective Date, such Notice of Borrowing
shall be effective if received by the Agent not later than
10:00 A.M. (New York City time) on the Effective Date.
(b) Upon receipt of the Notice of Borrowing, the Agent will
promptly notify each Bank thereof and of the amount of such Bank's Commitment
Percentage of the Committed Borrowing.
(c) Each Bank will make the amount of its Commitment
Percentage of each Committed Borrowing available to the Agent for the account of
the relevant Borrower at the Agent's Payment Office by 1:00 P.M. (New York City
time) (or, in the case of Base Rate Committed Loans, 2:00 P.M. (New York City
time)) on the Borrowing Date requested by such Borrower in funds immediately
available to the Agent. Unless any applicable condition of Article V has not
been satisfied, the proceeds of all such Committed Loans will then be made
available to such Borrower by the Agent by wire transfer in accordance with
written instructions provided to the Agent by such Borrower.
(d) Upon the request of the Majority Banks during the
existence of an Event of Default, no Borrower shall elect to have a Committed
Loan be made as a Eurodollar Committed Loan.
(e) After giving effect to any Committed Borrowing, there
shall not be more than fifteen different Interest Periods in effect in respect
of all Committed Loans then outstanding.
(f) (i) Whenever a Borrower desires to make a Swingline
Borrowing hereunder, it shall give the Agent and the Swingline Bank not later
than 1:00 P.M. (New York City time) on the date that a Swingline Loan is to be
made, written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be made hereunder. Each such notice shall be irrevocable and
specify in each case:
(A) the amount of the Swingline Loan, which shall be in an
aggregate minimum principal amount of $100,000 or any multiple
of $50,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) whether the Swingline Loan is to be a Base Rate Loan, an
IBOR Loan or a Negotiated Rate Loan; and
(D) the duration of the Interest Period, if any, applicable to
such Swingline Loan. If the borrowing request shall fail to
29
specify the duration of the Interest Period for any Swingline
Loan to bear interest based on IBOR, such Interest Period
shall be one week.
(ii) The Swingline Bank shall not incur any
liability to any Borrower in acting upon any telephonic notice
which the Swingline Bank believes in good faith to have been
given by officers authorized to act on behalf of such
Borrower.
(iii) The Agent shall notify the Banks on a monthly
basis of any Swingline Borrowings hereunder.
(iv) After giving effect to any Swingline
Borrowing, there shall be no more than ten Borrowings of
Swingline Loans outstanding at any time.
(v) The Swingline Bank will make the amount of
the Swingline Loan requested by the relevant Borrower
available to the Agent for the account of the relevant
Borrower at the Agent's Payment Office by 1:00 P.M. (New York
City time) on the Borrowing Date requested by such Borrower in
funds immediately available to the Agent. The proceeds of the
Swingline Loan will then be made available promptly to such
Borrower by the Agent by wire transfer in accordance with
written instructions provided to the Agent by such Borrower.
(g) (i) Whenever a Borrower desires to make a Multicurrency
Borrowing hereunder, it shall give the Agent not later than 3:00 P.M. (New York
City time) not less than four Business Days prior to the requested Borrowing
Date, written notice or telephonic notice promptly confirmed in writing of each
Multicurrency Loan to be made hereunder. Each such notice shall be irrevocable
and specify in each case:
(A) the amount of the Multicurrency Borrowing, which shall be
in an aggregate minimum principal amount the Dollar Equivalent
of which is not less than the lesser of $10,000,000 and the
remaining aggregate balance of the unutilized Multicurrency
Commitments;
(B) the requested Borrowing Date, which shall be a Business
Day; and
(C) the duration of the Interest Period, if any, applicable to
such Multicurrency Borrowing. If the borrowing request shall
fail to specify the duration of the Interest Period for any
Multicurrency Borrowing to bear interest based on LIBOR, such
Interest Period shall be one month.
(ii) The Agent shall not incur any liability to any
Borrower in acting upon any telephonic notice which the Agent
believes in good faith to have been given by officers
authorized to act on behalf of such Borrower.
(iii) The Agent shall notify the Banks (A) of each Notice of
Borrowing received by the Agent for a Multicurrency Borrowing
and of the Dollar Equivalent of such Borrowing and (B) on a
quarterly basis of outstanding Multicurrency Loans hereunder,
30
including the amount, currency, Dollar Equivalent and
applicable interest rates thereof.
(iv) After giving effect to any Multicurrency Borrowing,
there shall be no more than ten Borrowings of Multicurrency
Loans outstanding at any time.
(v) Upon receipt of the Notice of Borrowing of
Multicurrency Loans, the Agent will promptly notify each
Multicurrency Bank thereof and of the amount of the
Multicurrency Commitment Percentage of the Multicurrency
Borrowing of such Multicurrency Bank.
(vi) Each Multicurrency Bank will make the amount of its
Multicurrency Commitment Percentage of each Multicurrency
Borrowing available to the Agent for the account of the
relevant Borrower at the Agent's Payment Office by 11:00 A.M.
(London time) on the Borrowing Date requested by such Borrower
in funds immediately available to the Agent. Unless any
applicable condition of Article V has not been satisfied, the
proceeds of all such Multicurrency Loans will then be made
available to such Borrower by the Agent by wire transfer in
accordance with written instructions provided to the Agent by
such Borrower.
2.04 Conversion and Continuation Elections for Committed
Borrowings and Multicurrency Borrowings. (a) A Borrower may
upon irrevocable written notice to the Agent in accordance
with paragraph (c) below:
(i) elect to convert on any Business Day, any Base Rate
Committed Loans (or any part thereof in an amount of not less
than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof) into Eurodollar Committed Loans;
(ii) elect to convert on the last day of the Interest Period
with respect thereto, any Eurodollar Committed Loans (or any
part thereof in an amount of not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof) into Base
Rate Committed Loans; or
(iii) elect to continue on the last day of the Interest Period
with respect thereto, any Eurodollar Committed Loans (or any
part thereof in an amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof);
provided, however, that (w) if the aggregate amount of a Committed Borrowing
comprised of Eurodollar Committed Loans shall have been reduced, by payment,
prepayment, or conversion of part thereof to be less than $1,000,000, the
Eurodollar Committed Loans comprising such Committed Borrowing shall
automatically convert into Base Rate Committed Loans, and on and after such date
the right of such Borrower to continue such Committed Loans as, and convert such
Committed Loans into, Eurodollar Committed Loans shall terminate, (x) if fewer
than all of the Multicurrency Loans comprising any Multicurrency Borrowing are
to be continued, such continuation shall be made pro rata among the
31
Multicurrency Banks in accordance with the respective Multicurrency Loans of
such Banks that are part of such Borrowing immediately prior to such conversion
or continuation, (y) accrued interest on a Multicurrency Loan (or any portion
thereof) being continued shall be paid by the appropriate Borrower at the time
of continuation and (z) no Multicurrency Loan may be continued as a Eurodollar
Multicurrency Loan with an Interest Period ending after the Termination Date.
(b) A Borrower may upon irrevocable written notice to the
Agent in accordance with paragraph (c) below elect to continue on the last day
of the Interest Period with respect thereto, any Eurodollar Multicurrency Loans
(or any part thereof in an amount not less than the Dollar Equivalent of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof).
Except as required under Section 4.02, each continuation of
any Multicurrency Borrowing shall be allocated pro rata among the Multicurrency
Banks in accordance with the respective principal amounts of their outstanding
Multicurrency Loans comprising such Borrowing.
(c) The relevant Borrower shall deliver a Notice of
Conversion/Continuation in accordance with Section 12.02 to be received by the
Agent not later than (A) in the case of Committed Loans, (i) 1:00 P.M. (New York
City time) not less than three Business Days in advance of the Conversion Date
or Continuation Date, if the Committed Loans are to be converted into or
continued as Eurodollar Committed Loans, or (ii) 1:00 P.M. (New York City time)
on the Conversion Date, if the Committed Loans are to be converted into Base
Rate Committed Loans and (B) in the case of Eurodollar Multicurrency Loans, 3:00
P.M. (New York City time) not less than four Business Days prior to
continuation, if the Eurodollar Multicurrency Loans are to be continued as such,
in each case specifying:
(A) the proposed Conversion Date or Continuation Date, which
shall be a Business Day;
(B) the aggregate principal amount of Committed Loans to be
converted or continued or the aggregate principal amount of
the Eurodollar Multicurrency Loans to be continued, as the
case may be;
(C) the nature of the proposed conversion or continuation; and
(D) the duration of the requested Interest Period, if
applicable.
(d) If upon the expiration of any Interest Period applicable
to (i) Eurodollar Committed Loans of any Borrower, such Borrower has failed to
select timely a new Interest Period, such Committed Loans shall automatically
convert into Base Rate Committed Loans and (ii) Eurodollar Multicurrency Loans
of any Borrower, such Borrower has failed to select timely a new Interest
Period, such new Interest Period shall be one month.
(e) Upon receipt of a Notice of Conversion/Continuation, the
Agent will promptly notify each Bank thereof, or, if no timely notice is
provided by the relevant Borrower, the Agent will promptly notify each Bank of
32
the details of any automatic conversion. All conversions and continuations shall
be made pro rata according to the respective outstanding principal amounts of
the Committed Loans with respect to which the notice was given.
(f) Upon the request of the Majority Banks during the
existence of an Event of Default, no Borrower shall elect to have a Committed
Loan converted into or continued as a Eurodollar Committed Loan.
(g) Notwithstanding any other provision contained in this
Agreement, after giving effect to any conversion or continuation of any
Committed Loans, there shall not be more than fifteen different Interest Periods
in effect in respect of all Committed Loans then outstanding.
2.05 Bid Borrowings. In addition to Committed Borrowings
pursuant to Section 2.03, each Bank severally agrees that each Borrower may, as
set forth in Section 2.06, from time to time, request the Banks from and after
the Effective Date and prior to the Termination Date to submit offers to make
Bid Loans to such Borrower; provided, however, that the Banks may, but shall
have no obligation to, submit such offers and such Borrower may, but shall have
no obligation to, accept any such offers; and provided further, that (a) after
giving effect to any Bid Borrowing, the aggregate principal amount of all
outstanding Bid Loans together with (w) the outstanding aggregate principal
amount of all Committed Loans made by all Banks, plus (x) the outstanding
aggregate principal amount of all Swingline Loans made by the Swingline Bank,
plus (y) the Dollar Equivalent of the outstanding aggregate principal amount of
all Multicurrency Loans made by the Multicurrency Banks, plus (z) all
outstanding Letter of Credit Obligations, shall not exceed the Aggregate
Commitment.
2.06 Procedure for Bid Borrowings.
(a) When any Borrower wishes to request the Banks to submit
offers to make Bid Loans hereunder, it shall transmit to the Agent by telephone
call followed promptly by facsimile transmission a notice in substantially the
form of Exhibit C (a "Competitive Bid Request") so as to be received no later
than 1:00 P.M. (New York City time) (x) not less than four Business Days prior
to the date of a proposed Bid Borrowing in the case of a Eurodollar Auction, or
(y) not less than two Business Days prior to the date of a proposed Bid
Borrowing in the case of an Absolute Rate Auction, specifying:
(i) the date of such Bid Borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Bid Borrowing, which shall
be a minimum amount of $5,000,000 or in multiples of
$1,000,000 in excess thereof;
(iii) whether the Competitive Bids requested are to be for
Eurodollar Bid Loans or Absolute Rate Bid Loans or both; and
(iv) the duration of the Interest Period applicable thereto
(subject to the provisions of the definition of "Interest
Period" herein).
33
The Borrowers may not request Competitive Bids for more than three
Interest Periods in a single Competitive Bid Request and may not
request Competitive Bids more than once in any period of five Business
Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will
promptly send to the Banks by facsimile transmission an invitation for
Competitive Bids which shall constitute an invitation by the respective Borrower
to each Bank to submit Competitive Bids offering to make the Bid Loans to which
such Competitive Bid Request relates in accordance with this Section 2.06.
(c) (i) Each Bank may at its sole and
absolute discretion submit a Competitive Bid containing an offer or offers to
make Bid Loans in response to any Invitation for Competitive Bids. Each
Competitive Bid must comply with the requirements of this Section 2.06(c) and
must be submitted to the Agent by facsimile transmission at the Agent's office
for notices set forth on the signature pages hereto not later than (1) 9:30 A.M.
(New York City time) three Business Days prior to the proposed date of Bid
Borrowing, in the case of a Eurodollar Auction or (2) 9:30 A.M. (New York City
time) on the proposed date of Bid Borrowing in the case of an Absolute Rate
Auction; provided that Competitive Bids submitted by the Agent (or any Affiliate
of the Agent) in the capacity of a Bank may be submitted, and may only be
submitted, if the Agent or such Affiliate notifies the respective Borrower of
the terms of the offer or offers contained therein not later than (A) 9:15 A.M.
(New York City time) three Business Days prior to the proposed date of Bid
Borrowing, in the case of a Eurodollar Auction or (B) 9:15 A.M. (New York City
time) on the proposed date of Bid Borrowing, in the case of an Absolute Rate
Auction.
(ii) Each Competitive Bid shall be in substantially the form
of Exhibit D, specifying therein:
(A) the proposed date of Bid Borrowing;
(B) the principal amount of each Bid Loan for which such Competitive
Bid is being made, which principal amount (x) may be equal to, greater
than or less than the Commitment of the quoting Bank, (y) must be a
minimum principal amount of $5,000,000 or in multiples of $1,000,000 in
excess thereof and (z) may not exceed the principal amount of Bid Loans
for which Competitive Bids were requested;
(C) in case the respective Borrower elects a Eurodollar Auction, the
margin above or below LIBOR (the "Eurodollar Bid Margin") offered for
each such Bid Loan, expressed as a percentage (rounded upward to the
nearest 1/1000th of 1%) to be added to or subtracted from the
applicable LIBOR and the Interest Period applicable thereto;
(D) in case the respective Borrower elects an Absolute Rate Auction,
the rate of interest per annum (rounded upward to the nearest 1/100th
of 1%) (the "Absolute Rate") offered for each such Bid Loan; and
(E) the identity of the quoting Bank.
34
A Competitive Bid may contain up to three separate offers by
the quoting Bank with respect to each Interest Period
specified in the related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D or does not
specify all of the information required by Section (c)(ii) of this
Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth in the
applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in Section (c)(i).
(iv) Notwithstanding anything to the contrary contained in
this Section 2.06(c), a Competitive Bid may be greater than or less than the
respective Commitment of any Bid Loan Lender.
(d) Promptly on receipt and not later than 10:00 A.M. (New
York City time) three Business Days prior to the proposed date of Bid Borrowing
in the case of a Eurodollar Auction, or 10:00 A.M. (New York City time) on the
proposed date of Bid Borrowing, in the case of an Absolute Rate Auction, the
Agent will notify the respective Borrower of the terms (i) of any Competitive
Bid submitted by a Bank that is in accordance with Section 2.06(c), and (ii) of
any Competitive Bid that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid submitted by such Bank with respect to the same
Competitive Bid Request. Any such subsequent Competitive Bid shall be
disregarded by the Agent unless such subsequent Competitive Bid is submitted
solely to correct a manifest error in such former Competitive Bid and only if
received within the times set forth in Section 2.06(c). The Agent's notice to
the respective Borrower shall specify (1) the aggregate principal amount of Bid
Loans for which offers have been received for each Interest Period specified in
the related Competitive Bid Request; and (2) the respective principal amounts
and Eurodollar Bid Margins or Absolute Rates, as the case may be, so offered.
Subject only to the provisions of Sections 4.02, 4.05 and 5.02 hereof and the
provisions of this subsection (d), any Competitive Bid shall be irrevocable
except with the written consent of the Agent given on the written instructions
of the respective Borrower.
(e) Not later than 11:00 A.M. (New York City time) three
Business Days prior to the proposed date of Bid Borrowing, in the case of a
Eurodollar Auction, or 10:30 A.M. (New York City time) on the proposed date of
Bid Borrowing, in the case of a Absolute Rate Auction, the respective Borrower
shall notify the Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to Section 2.06(d). The respective Borrower shall be
under no obligation to accept any offer and may choose to reject all offers. In
35
the case of acceptance, such notice shall specify the aggregate principal amount
of offers for each Interest Period that is accepted. The respective Borrower may
accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may
not exceed the applicable amount set forth in the related
Competitive Bid Request;
(ii) the principal amount of each Bid Borrowing must be
$5,000,000 or in any multiple of $1,000,000 in excess thereof;
(iii) acceptance of offers may only be made on the basis of
ascending Eurodollar Bid Margins or Absolute Rates within each
Interest Period, as the case may be; and
(iv) the respective Borrower may not accept any offer that is
described in Section 2.06(c)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(f) If offers are made by two or more Banks with the same
Eurodollar Bid Margins or Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which such offers are
accepted for the related Interest Period, the principal amount of Bid Loans in
respect of which such offers are accepted shall be allocated by the Agent among
such Banks as nearly as possible (in such multiples not less than $1,000,000 as
the Agent may deem appropriate) in proportion to the aggregate principal amounts
of such offers. Determination by the Agent of the amounts of Bid Loans shall be
conclusive in the absence of manifest error.
(g) (i)The Agent will promptly notify each Bank having
submitted a Competitive Bid if its offer has been accepted and, if its offer has
been accepted, of the amount of the Bid Loan or Bid Loans to be made by it on
the date of the Bid Borrowing.
(ii) Each Bank which has received notice pursuant to Section
2.06(g)(i) that its Competitive Bid has been accepted, shall make the amounts of
such Bid Loans available to the Agent for the account of the respective Borrower
at the Agent's Payment Office, by 2:00 P.M. (New York City time), on such date
of Bid Borrowing, in funds immediately available to the Agent for the account of
the respective Borrower at the Agent's Payment Office.
(iii) Promptly following each Bid Borrowing, the Agent shall
notify each Bank of the ranges of bids submitted and the highest and lowest bids
accepted for each Interest Period requested by the respective Borrower and the
aggregate amount borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Borrowers and the Banks shall
furnish such information to the Agent as the Agent may request relating to the
making of Bid Loans, including the amounts, interest rates, dates of borrowings
and maturities thereof, for purposes of the allocation of amounts received from
the Borrowers for payment on all amounts owing hereunder.
36
(h) If, on or prior to the proposed date of the Bid Borrowing,
the Aggregate Commitment has not been terminated and if, on such proposed date
of Bid Borrowing all applicable conditions to funding referenced in Section
4.02, 4.05 and 5.02 hereof are satisfied, the Bank or Banks whose offers the
respective Borrower has accepted will fund each Bid Loan so accepted. Nothing in
this Section 2.06 shall be construed as a right of first offer in favor of the
Banks or to otherwise limit the ability of the Borrowers to request and accept
credit facilities from any Person (including any of the Banks), provided that no
Default or Event of Default would otherwise arise or exist as a result of the
Borrowers executing, delivering or performing under such credit facilities.
2.07 Voluntary Reduction and Termination of Commitments.
(a) The Borrowers may, upon not less than five Business Days'
prior notice to the Agent, terminate the Aggregate Commitment (including the
Letter of Credit Commitment) or permanently reduce the Aggregate Commitment
(including the Letter of Credit Commitment) by an aggregate minimum amount of
$5,000,000 or any multiple of $1,000,000 in excess thereof; provided, however,
that no such reduction or termination shall be permitted if after giving effect
thereto and to any prepayment of the Committed Loans, Swingline Loans,
Multicurrency Loans and/or Bid Loans made on the effective date thereof, (i) the
then outstanding principal amount of the Committed Loans, Swingline Loans,
Multicurrency Loans (Dollar Equivalent thereof) and Bid Loans plus the
outstanding Letter of Credit Obligations would exceed the Aggregate Commitment
then in effect, (ii) the then outstanding principal amount of Multicurrency
Loans would exceed the Total Multicurrency Commitment or (iii) the aggregate
amount of Letter of Credit Obligations would exceed the Letter of Credit
Commitment then in effect; and, provided further, that once reduced in
accordance with this Section 2.07, the Aggregate Commitment (including the
Letter of Credit Commitment) may not be increased.
(b) Any reduction of the Aggregate Commitment and the Letter
of Credit Commitment pursuant to this Section 2.07 shall be applied pro rata to
each Bank's Commitment in accordance with such Bank's Commitment Percentage. The
amount of any such reduction of the Aggregate Commitment shall not be applied to
the Letter of Credit Commitment or the Total Multicurrency Commitment unless
otherwise specified by the Borrowers or required by the definition thereof. All
accrued commitment and letter of credit fees to the effective date of any
reduction or termination of Aggregate Commitment, shall be paid on the effective
date of such reduction or termination. The Agent shall promptly notify the Banks
of any reduction or termination of the Aggregate Commitment.
(c) Upon not less than three Business Days' prior irrevocable
notice to the Agent, the Borrowers may, at any time, in whole permanently
terminate, or from time to time, in part reduce, the Multicurrency Commitments,
provided, however, that (i) each such partial reduction shall be in a minimum
amount of $5,000,000 or any multiple of $1,000,000 in excess thereof and (ii) no
such termination or reduction shall be made (x) which would reduce the Total
Multicurrency Commitment to an amount less than the Dollar Equivalent of the
aggregate Multicurrency Loan Exposures or (y) which would reduce the
38
Multicurrency Commitment of any Multicurrency Bank to an amount that is less
than the Dollar Equivalent of the aggregate principal amount of such
Multicurrency Bank's outstanding Multicurrency Loans. The Multicurrency
Commitments shall automatically terminate on the date of any termination of the
Commitments.
2.08 Mandatory Reduction of Loan Commitments a (a) The
Aggregate Commitment (and the Commitment of each Bank) shall terminate in its
entirety on December 31, 1996 unless the Effective Date shall have occurred on
or prior to such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Agreement, the Aggregate Commitment shall terminate in its
entirety on the Termination Date.
(c) In addition to any other mandatory commitment reductions
pursuant to this Agreement, on each date set forth below (each, a "Scheduled
Commitment Reduction Date"), the Aggregate Commitment shall be permanently
reduced by the amount set forth opposite such date:
Scheduled Commitment Reduction Date Amount
----------------------------------- ------
December 12, 1999 $100,000,000
December 12, 2000 $150,000,000
December 12, 2001 Remaining Aggregate
Commitment
(d) Each reduction to the Aggregate Commitment pursuant to
this Section 2.08 shall be applied pro rata to reduce the Commitment of each
Bank.
2.09 Voluntary Prepayments of Committed Loans, Swingline Loans
and Multicurrency Loans.
(a) (i) Each Borrower may, prior to 1:00 P.M. (New York City
time), upon at least three Business Days' notice to the Agent in the case of
Eurodollar Committed Loans, and prior to 10:00 A.M. (New York City time), upon
same Business Day notice in the case of Base Rate Committed Loans, ratably
prepay Committed Loans, in whole or in part, in amounts of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(ii) Each Borrower may at any time prepay Swingline Loans
(other than Swingline Loans maintained as Negotiated Rate Loans), in whole or in
part, in minimum amounts of $100,000 or an integral multiple of $50,000 in
excess thereof; provided, however, that notice of such prepayment shall be
required to be delivered to the Agent and the Swingline Bank by 1:00 P.M. (New
York City time) on the date of such prepayment.
(iii) Each Borrower may at any time prepay Multicurrency
Loans, in whole or in part, in minimum amounts of the Dollar Equivalent of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof; provided,
however, that notice of such prepayment shall be required to be delivered to the
Agent by 3:00 P.M. (New York City time) not less than four Business Days prior
to the date of such prepayment. Except as required under Section 4.02, each
38
prepayment of principal of any Multicurrency Borrowing shall be allocated pro
rata among the Multicurrency Banks in accordance with the respective principal
amounts of their outstanding Multicurrency Loans comprising such Borrowing.
(b) Any notice of prepayment delivered pursuant to this
Section 2.09 shall specify the date and amount of such prepayment and the type
of Loans to be prepaid, including in the case of Committed Loans whether such
prepayment is of Base Rate Committed Loans or Eurodollar Committed Loans or any
combination thereof and in the case of any Swingline Loan whether such
prepayment is of a Base Rate Loan or an IBOR Loan or any combination thereof.
Each such notice shall be irrevocable by the relevant Borrower and the Agent
will promptly notify each Bank or Multicurrency Bank, as the case may be,
thereof and of such Bank's Commitment Percentage or Multicurrency Bank's
Multicurrency Commitment Percentage of such prepayment, if applicable. If such
notice is given by a Borrower, such Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date on the
amount prepaid and the amounts, if any, required pursuant to Section 4.04;
provided that interest shall be paid in connection with any such prepayment of
Base Rate Committed Loans (other than a prepayment in full) on the next
occurring Interest Payment Date.
(c) Bid Loans may not be voluntarily prepaid.
2.10 Mandatory Prepayments.
(a) (i) If on any date (A) the aggregate unpaid principal
amount of outstanding Committed Loans, Swingline Loans, Multicurrency Loans
(Dollar Equivalent thereof) and Bid Loans plus the outstanding Letter of Credit
Obligations (to the extent not Cash Collateralized pursuant to clause (iii)
below or as provided for in Section 3.07) exceeds the Aggregate Commitment or
(B) the aggregate unpaid principal amount of Swingline Loans exceeds the
Swingline Amount, in each such case the Borrowers shall immediately prepay the
amount of such excess, which shall be applied, in the case of subclause (A)
above, first to Swingline Loans, second to Committed Loans, third to
Multicurrency Loans, and fourth to Bid Loans.
(ii) If on any date, (x) the Dollar Equivalent of the
aggregate principal amount of the Multicurrency Loans outstanding would exceed
the Total Multicurrency Commitment by 5% or (y) the Dollar Equivalent of the
aggregate principal amount of a Multicurrency Bank's outstanding Multicurrency
Loans would exceed the Multicurrency Commitment of such Multicurrency Bank by
5%, in each such case the Borrowers shall prepay the amount of such excess
within four Business Days, which shall be applied to Multicurrency Loans;
(iii) If on any date the aggregate amount of all Letter of
Credit Obligations shall exceed the Letter of Credit Commitment, the Borrowers
shall Cash Collateralize on such date their obligations in respect of Letters of
Credit in an amount equal to the excess of the Letter of Credit Obligations over
the Letter of Credit Commitment.
(b) The Borrowers shall pay, together with each prepayment
made by the Borrowers under this Section 2.10, accrued interest on the amount
prepaid and any amounts required pursuant to Section 4.04; provided that
39
interest shall be paid in connection with any such prepayment of Base Rate Loans
(other than a prepayment in full) on the next occurring Interest Payment Date.
(c) Any prepayments pursuant to this Section 2.10 made on a
day other than an Interest Payment Date for any Loan shall be applied first to
any Base Rate Loans then outstanding and then to Eurodollar Loans with the
shortest Interest Periods remaining.
2.11 Repayment of Principal.
(a) The Committed Loans. The Borrowers shall repay to the
Banks in full on the Termination Date the aggregate principal amount of the
Committed Loans outstanding on the Termination Date.
(b) The Swingline Loans. Each Swingline Loan shall mature, and
the principal amount thereof shall be due and payable, and the Borrowers shall
repay such Swingline Loan (i) if such Swingline Loan is a Base Rate Loan, on the
date which is 30 days after the relevant Borrowing Date, (ii) if such Swingline
Loan is an IBOR Loan, on the last day of the Interest Period therefor, (iii) if
such Swingline Loan is a Negotiated Rate Loan, on the last day of the interest
period determined by the Borrowers and the Swingline Bank applicable thereto and
(iv) in any event, on the Termination Date.
(c) Multicurrency Loans. Each Multicurrency Loan shall mature,
and the principal amount thereof shall be due and payable, and the Borrowers
shall repay such Multicurrency Loan on the Termination Date. Except as required
under Section 4.02, each payment of principal of any Multicurrency Borrowing
shall be allocated pro rata among the Multicurrency Banks in accordance with the
respective principal amounts of their outstanding Multicurrency Loans comprising
such Borrowing.
(d) Bid Loans. The Borrowers shall repay each Bid Loan on the
last day of the Interest Period applicable thereto.
2.12 Interest.
(a) Except as provided in paragraphs (c) or (g) below, each
Loan shall bear interest on the outstanding principal amount thereof from the
Borrowing Date applicable thereto until it becomes due at a rate per annum equal
to the Base Rate, IBOR or LIBOR, as the case may be, plus the Applicable Margin
then in effect based on the higher of the senior unsecured long term debt
ratings for New USI or the Company as issued by Moody's and S&P as set forth
below:
40
Senior Unsecured Debt Applicable
Rating Margin
------ ------
Base
S&P ▇▇▇▇▇'▇ ▇▇▇▇/LIBOR Rate
--- ------- ---------- ----
Greater than or equal to A- and A3 0.150% 0%
the higher of
Greater than or equal to BBB+ and Baa1 0.185% 0%
the higher of
Greater than or equal to BBB and Baa2 0.225% 0%
the higher of
Greater than or equal to BBB- and Baa3 0.250% 0%
the higher of
Greater than or equal to BB+ and Ba1 0.350% 0%
the higher of
Greater than or equal to BB and Ba2 0.450% 0%
the higher of
Less than the higher of BB and Ba2 0.625% 0%
(provided, however, that if more than a one level split exists between the S&P
and Moody's ratings, Applicable Margin will be determined assuming that New
USI's or the Company's senior unsecured long term debt rating is one level below
the higher of the two ratings).
(b) Any change in the Applicable Margin due to a change in New
USI's or the Company's senior unsecured debt rating shall be effective on the
date of such rating change and shall apply to all Committed Loans that are
outstanding at any time during the period commencing on the date of such rating
change and ending on the date immediately preceding the next date of such rating
change.
(c) Each Bid Loan shall bear interest on the outstanding
principal amount thereof from the relevant Borrowing Date at a rate per annum
equal to LIBOR plus (or minus) the Eurodollar Bid Margin, or, at the Absolute
Rate, as the case may be, as agreed in the related Competitive Bid therefor.
(d) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any prepayment
of any portion of Committed Loans (excluding Base Rate Committed Loans, on which
such interest shall be paid on the next occurring Interest Payment Date) or
41
Multicurrency Loans for the portion of such Loans so prepaid and upon payment
(including prepayment) of any Committed Loans (including Base Rate Committed
Loans) or Multicurrency Loans in full thereof. During the existence of any Event
of Default, interest shall be paid on demand.
(e) Each payment of interest on any Multicurrency Borrowing
(i) with respect to the portion of such payment that is equal to the interest on
the outstanding principal amount of such Multicurrency Borrowing calculated at a
rate per annum equal to LIBOR, shall be allocated pro rata among the
Multicurrency Banks and (ii) with respect to the portion of such payment that is
equal to the interest on the outstanding principal amount of such Multicurrency
Borrowing calculated at a rate per annum equal to the Applicable Margin for a
Eurodollar Multicurrency Loan as set forth in Section 2.12(a), shall be
allocated pro rata among all of the Banks in accordance with their Multicurrency
Loan Exposures with respect to such Multicurrency Loans comprising such
Borrowing with (x) each Multicurrency Bank receiving its payment in the currency
applicable to such Eurodollar Multicurrency Loan and (y) each Bank (other than a
Multicurrency Bank) receiving the Dollar Equivalent of its payment with the
Agent using the Exchange Rate in effect on such date to convert the currency
applicable to such Eurodollar Multicurrency Loan into Dollars.
(f) If any amount of principal of or interest on any Loan, or
any other regularly scheduled amount payable hereunder or under any other Loan
Document is not paid in full when due, after giving effect to any applicable
grace period (whether at stated maturity, by acceleration, demand or otherwise),
the Borrowers shall pay interest (after as well as before judgment) on the
principal amount of all outstanding Loans at the applicable rate per annum
provided in this Section 2.12 plus 2% and on all other amounts (including
interest), at a rate per annum equal to the Base Rate plus 2%.
(g) Anything herein to the contrary notwithstanding, the
obligations of the Borrowers hereunder shall be subject to the limitation that
payments of interest shall not be required, for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by the respective Bank would be contrary to the
provisions of any law applicable to such Bank limiting the highest rate of
interest which may be lawfully contracted for, charged or received by such Bank,
and in such event the Borrowers shall pay such Bank interest at the highest rate
permitted by applicable law.
(h) Each Negotiated Rate Loan shall bear interest on the
outstanding principal amount thereof from the Borrowing Date applicable thereto
until such Negotiated Rate Loan becomes due at the applicable Negotiated Rate.
2.13 Fees. In addition to fees described in Section 3.08:
(a) Facility Fees.
(i) The Borrowers shall pay to the Agent for the account of
each Bank a facility fee on the average of such Bank's Commitment, regardless of
the utilization thereof, computed on a quarterly basis in arrears on each
42
Interest Payment Date for Base Rate Committed Loans based upon the average daily
amount of such Bank's Commitment for the previous three month period as
calculated by the Agent and payable on such date, equal to the rate per annum
based on the higher of the senior unsecured debt ratings for New USI or the
Company issued by Moody's and S&P as set forth below:
Facility
Senior Unsecured Debt Rating Fee
---------------------------- ---------
S&P Moody's
--- -------
Greater than or equal to
the higher of A- and A3 0.075%
Greater than or equal to BBB+ and Baa1 0.090%
the higher of
Greater than or equal to
the higher of BBB and Baa2 0.100%
Greater than or equal to
the higher of BBB- and Baa3 0.125%
Greater than or equal to BB+ and
the higher of Ba1 0.150%
Greater than or equal to BB and
the higher of Ba2 0.200%
Less than the higher of BB and Ba2 0.250%
(provided, however, that if more than a one level split exists
between the S&P and Moody's ratings, the facility fee will be
determined assuming that New USI's or the Company's senior
unsecured long term debt rating is one level below the higher
of the two ratings).
(ii) On each Interest Payment Date for a Multicurrency Loan
the Borrowers shall pay to the Agent for the account of each Multicurrency Bank
in U.S. Dollars a fronting fee on the Dollar Equivalent of the daily average
outstanding principal amount of such Multicurrency Loan during such Interest
Period, computed in arrears for such Interest Period as calculated by the Agent
and payable on such date, equal to 0.07% per annum. Such fee for each respective
Multicurrency Loan shall be computed on the basis of the Exchange Rate in effect
on the date on which such Multicurrency Loan was incurred.
(b) Other Fees. The Borrowers shall pay such fees as have or
may be agreed between the Borrowers and the Agent from time to time.
43
2.14 Computation of Fees and Interest.
(a) All computations of interest payable in respect of Base
Rate Loans and Multicurrency Loans denominated in Pounds Sterling shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest under this Agreement shall
be made on the (i) basis of a 360-day year and actual days elapsed or (ii) or
such other basis that is customary for an Eligible Currency (other than Pounds
Sterling). Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the last day
thereof.
(b) The Agent will promptly notify the Borrowers and the Banks
of each determination of LIBOR; provided, however, that any failure to do so
shall not relieve the Borrowers of any liability hereunder. Any change in the
interest rate on a Loan resulting from a change in the senior debt rating shall
become effective as of the opening of business on the relevant date of such
change. The Agent will promptly notify the Borrowers and the Banks of the
effective date and the amount of each such change, provided, however, that any
failure to do so shall not relieve the Borrowers of any liability hereunder.
(c) Each determination of an interest rate by the Agent shall
be conclusive and binding on the Borrowers and the Banks in the absence of
manifest error.
(d) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the Commitments), or for any reason
whatsoever any Reference Bank shall cease to be a Bank hereunder, or any
Reference Bank, at the request of New USI, elects (at its sole discretion) not
to continue to be a Reference Bank hereunder, that Reference Bank shall
thereupon cease to be a Reference Bank, and LIBOR shall be determined on the
basis of the rates as notified by the remaining Reference Banks or Reference
Bank.
(e) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the Reference
Banks shall be unable or otherwise fails to supply such rates to the Agent upon
its request, the rate of interest shall be determined on the basis of the
quotations of the remaining Reference Banks or Reference Bank.
2.15 Payments by the Borrowers.
(a) All payments (including prepayments) to be made by the
Borrowers on account of principal, interest, drawings under Letters of Credit,
fees and other amounts required hereunder shall be made without set-off or
counterclaim and shall, except as otherwise expressly provided with respect to
drawings under Letters of Credit and elsewhere herein, be made to the Agent for
the ratable account of the Banks at the Agent's Payment Office, and shall be
made in Dollars or the applicable Eligible Currency in the case of Multicurrency
Loans (or where such amount is denominated in the Euro and payment thereof is to
be made in the Euro and in immediately available, freely transferable, cleared
funds to such account with such bank in such principal financial center as the
Agent shall have specified for this purpose) and in immediately available funds,
no later than 1:00 P.M. (New York City time) (or 3:00 P.M. (New York City time)
in the case of Swingline Loans) (or 1:00 P.M. (London time) in the case of
44
Multicurrency Loans) on the date specified herein. The Agent will promptly
distribute to each Bank its share, if any, of such principal, interest, fees or
other amounts, in like funds as received (except as set forth in Section
2.12(e)). Any payment which is received by the Agent later than 1:00 P.M. (New
York City time) (or 3:00 P.M. (New York City time) in the case of Swingline
Loans) (or 1:00 P.M. (London time) in the case of Multicurrency Loans) shall be
deemed to have been received on the immediately succeeding Business Day and any
applicable interest or fee shall continue to accrue until such payment is deemed
to have been received.
(b) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or fees, as the case may be (subject to
the provisions set forth in the definition of the term of "Interest Period"
herein).
(c) Unless the Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Banks hereunder
that such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent as required hereunder
on such date in immediately available funds and the Agent may (but shall not be
so required), in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent such Borrower shall not have made such payment in full to the
Agent, each Bank shall repay to the Agent on demand such amount distributed to
such Bank, together with interest thereon for each day from the date such amount
is distributed to such Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate as in effect for each such day.
2.16 Payments by the Banks to the Agent.
(a) Unless the Agent shall have received notice from a Bank on
the Effective Date or, with respect to each Borrowing after the Effective Date,
at least one Business Day prior to the date of any proposed Borrowing (other
than a Borrowing of a Swingline Loan which in accordance with Section 2.03(f) is
funded directly by the Swingline Bank), that such Bank will not make available
to the Agent for the account of the relevant Borrower the amount of such Bank's
Commitment Percentage of the Committed Loans, or Multicurrency Commitment
Percentage of the Multicurrency Loans, as the case may be, included in such
Borrowing, the Agent may assume that each Bank has made such amount available to
the Agent as required hereunder on the Borrowing Date and the Agent may (but
shall not be so required), in reliance upon such assumption, make available to
such Borrower on such date a corresponding amount. If and to the extent any Bank
shall not have made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made available to such
Borrower such amount, such Bank shall immediately make such amount available to
the Agent, together with interest at the Federal Funds Rate from the date of
such Borrowing to the date on which the Agent recovers such amount from such
Bank or such Borrower. A notice of the Agent submitted to any Bank with respect
to amounts owing under this Section 2.16(a) shall be conclusive, absent manifest
error. If such amount is so made available, such payment to the Agent shall
constitute such Bank's Loan on the Borrowing Date for all purposes of this
45
Agreement. If such amount is not made available to the Agent on the next
Business Day following such Borrowing Date, the Agent shall notify such Borrower
of such failure to fund and, upon demand by the Agent, such Borrower shall pay
such amount to the Agent for the Agent's account, together with interest thereon
for each day elapsed since such Borrowing Date, at a rate per annum equal to the
interest rate applicable at the time to the Committed Loans or the Multicurrency
Loans, as the case may be, comprising such Borrowing.
(b) The failure of any Bank to make any Committed Loan or any
Multicurrency Bank to make any Multicurrency Loan, respectively, on any
Borrowing Date shall not relieve any other Bank or Multicurrency Bank of any
obligation hereunder to make a Committed Loan or Multicurrency Loan on such
Borrowing Date, but no Bank shall be responsible for the failure of any other
Bank to make the Committed Loan or Multicurrency Loan to be made by such other
Bank on any Borrowing Date.
2.17 Sharing of Payments, etc.
(a) If, other than as expressly provided elsewhere herein, any
Bank shall obtain on account of the Committed Loans, or any Multicurrency Bank
shall obtain on account of the Multicurrency Loans, owing to it any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its Commitment Percentage, or Multicurrency
Commitment Percentage, as the case may be, of payments on account of the
Obligations of the same kind obtained by all the Banks or Multicurrency Banks,
as applicable, such Bank shall forthwith (i) notify the Agent of such fact, and
(ii) purchase from the other Banks such participations in such Committed Loans
or Multicurrency Loans, as the case may be, made by them as shall be necessary
to cause such purchasing Bank to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's Commitment Percentage or Multicurrency Commitment Percentage, as the case
may be, (according to the proportion of (A) the amount of such paying Bank's
required repayment to (B) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the purchasing Bank in
respect of the total amount so recovered. The Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased pursuant to this Section 2.17 and will in each case
notify the Banks following any such purchases.
(b) Any Bank having outstanding Committed Loans, Multicurrency
Loans and Bid Loans at any time a right of set-off is exercised by such Bank
shall apply the proceeds of such set-off first to such Bank's Committed Loans
until its Committed Loans are reduced to zero, second to such Bank's
Multicurrency Loans until its Multicurrency Loans are reduced to zero, and third
to its Bid Loans.
(c) Each Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 2.17 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
46
the right of set-off, but subject to Section 12.09) with respect to such
participation as fully as if such Bank were the direct creditor of such Borrower
in the amount of such participation.
2.18 Guaranty. All Obligations of the Borrowers under this
Agreement and all other Loan Documents shall be unconditionally guaranteed by
Old USI pursuant to Article X hereof and all Obligations of the Company under
this Agreement and the other Loan Documents shall be unconditionally guaranteed
by New USI pursuant to Article X hereof.
2.19 Termination Date Extensions. Not less than 180 days and
not more than 210 days prior to the second anniversary of the Effective Date and
every second anniversary of such second anniversary (the "Requested Extension
Effective Date"), New USI may make a written request to the Agent, who shall
forward a copy of each such request to each of the Banks, that the Termination
Date then in effect be extended to the date which occurs two years after such
Termination Date. Each request pursuant to the first sentence of this Section
2.19 shall also be accompanied by a certificate of an officer of New USI stating
that no Default or Event of Default has occurred and is continuing. Each Bank,
acting in its sole discretion and with no obligation to grant any extension
pursuant to this Section 2.19, shall, by written notice to New USI and the
Agent, such notice to be given on or prior to the Requested Extension Effective
Date, advise New USI and the Agent whether or not such Bank agrees to such
extension, provided that any Bank which fails to so notify New USI and the Agent
as provided above shall be deemed to have elected not to grant such extension.
The Agent shall notify New USI and each of the Banks as to which Banks have
agreed to such extension and as to the new Termination Date, if any, as a result
thereof. The extension of the Termination Date pursuant to the terms of this
Section 2.19 must be approved by each Bank.
2.20 Rounding and Other Consequential Changes. With effect on
and from the Commencement of the Third Stage of EMU:
(a) Without prejudice and in addition to
any method of conversion or rounding prescribed by any EMU
Legislation, each reference in this Agreement to a fixed
amount or fixed amounts in a National Currency Unit to be paid
to or by the Agent shall be replaced by a reference to such
comparable and convenient fixed amounts or fixed amounts in
the Euro Unit as the Agent may from time to time reasonably
specify; and
(b) Except as expressly provided in this
clause (b), each provision of this Agreement shall be subject
to such changes of construction as the Agent may from time to
time reasonably specify to be necessary to reflect the
changeover to the Euro in Participating Member States.
ARTICLE III.
THE LETTERS OF CREDIT
3.01 The Letter of Credit Subfacility.
47
(a) On the terms and conditions set forth herein (i) the
Issuing Bank agrees, (A) from time to time, on any Business Day during the
period from the Effective Date to the date which is 30 days prior to the
Termination Date to issue Letters of Credit for the account of each of the
Borrowers, and to amend or renew Letters of Credit previously issued by it, in
accordance with Sections 3.02(b) and 3.02(d), and (B) to honor drafts under the
Letters of Credit; and (ii) the Banks severally agree to participate in Letters
of Credit issued for the account of each of the Borrowers; provided, however,
that the Issuing Bank shall not issue any Letter of Credit if as of the date of,
and after giving effect to, the issuance of such Letter of Credit, (x) the sum
of (A) the aggregate amount of all Letter of Credit Obligations, plus (B) the
aggregate principal amount of all Committed Loans, plus (C) the aggregate
principal amount of all Bid Loans, plus (D) the aggregate principal amount of
all Swingline Loans, plus (E) the Dollar Equivalent of the aggregate principal
amount of all Multicurrency Loans, shall exceed the Aggregate Commitment or (y)
the Letter of Credit Obligations shall exceed the Letter of Credit Commitment.
(b) Schedule 3.01(b) hereto contains a description of certain
letters of credit issued by an Affiliate of Bank of America prior to the
Effective Date in support of obligations of the Company and/or its Subsidiaries
and which remain outstanding on the Effective Date. Each such letter of credit,
including any extension thereof, issued by such Affiliate of Bank of America and
listed on such Schedule 3.01(b) shall remain outstanding on and after the
Effective Date and constitute a "Letter of Credit" for all purposes of this
Agreement, and shall be deemed issued on the Effective Date.
(c) The Issuing Bank shall be under no obligation to issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority shall by its terms purport to enjoin or restrain the
Issuing Bank from issuing such Letter of Credit, or any
Requirement of Law applicable to the Issuing Bank or any
request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over the
Issuing Bank shall prohibit, or request that the Issuing Bank
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the
Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the
Issuing Bank is not otherwise compensated hereunder) not in
effect on the Effective Date or shall impose upon the Issuing
Bank any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which the Issuing Bank in
good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the Issuing Bank has received written notice from any
Bank, the Agent or any Borrower on or prior to the Business
Day prior to the requested date of issuance, of such Letter of
Credit, that one or more of the applicable conditions
contained in Article V is not then satisfied;
(iii) the expiry date of any requested Letter of Credit (x) is
more than one year after the date of issuance, unless the
Majority Banks and the Issuing Bank have approved such expiry
date in writing or (y) is later than the Termination Date;
48
(iv) any requested Letter of Credit is not in form and
substance acceptable to the Issuing Bank, or the issuance, of
a Letter of Credit shall violate any applicable policies of
the Issuing Bank;
(v) any standby Letter of Credit is for the purpose of
supporting the issuance of any letter of credit by any other
Person; or
(vi) such Letter of Credit is in a face amount less than
$250,000 or to be denominated in a currency other than
Dollars.
3.02 Issuance, Amendment and Renewal of Letters of Credit.
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of a Borrower received by the Issuing Bank (with a copy sent by
such Borrower to the Agent) at least four days (or such shorter time as the
Issuing Bank may agree in a particular instance in its sole discretion) prior to
the proposed date of issuance. Each such request for issuance of a Letter of
Credit shall be by facsimile, confirmed immediately in an original writing, in
the form of a Letter of Credit Application, and shall specify in form and detail
satisfactory to the Issuing Bank: (i) the proposed date of issuance of the
Letter of Credit (which shall be a Business Day); (ii) the face amount of the
Letter of Credit; (iii) the expiry date of the Letter of Credit; (iv) the name
and address of the beneficiary thereof; (v) the documents to be presented by the
beneficiary of the Letter of Credit in case of any drawing thereunder; (vi) the
full text of any certificate to be presented by the beneficiary in case of any
drawing thereunder; and (vii) such other matters as the Issuing Bank may
reasonably require.
(b) From time to time while a Letter of Credit is outstanding
and prior to the Termination Date, the Issuing Bank will, upon the written
request of a Borrower received by the Issuing Bank (with a copy sent by such
Borrower to the Agent) at least five days (or such shorter time as the Issuing
Bank may agree in a particular instance in its sole discretion) prior to the
proposed date of amendment, amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, made in the form of a Letter of
Credit Amendment Application and shall specify in form and detail satisfactory
to the Issuing Bank: (i) the Letter of Credit to be amended; (ii) the proposed
date of amendment of the Letter of Credit (which shall be a Business Day); (iii)
the nature of the proposed amendment; and (iv) such other matters as the Issuing
Bank may reasonably require. The Issuing Bank shall be under no obligation to
amend any Letter of Credit if: (A) the Issuing Bank would have no obligation at
such time to issue such Letter of Credit in its amended form under the terms of
this Agreement; or (B) the beneficiary of any such Letter of Credit does not
accept the proposed amendment to the Letter of Credit.
(c) The Agent will promptly notify the Banks of the receipt by
it of any Letter of Credit Application or Letter of Credit Amendment
Application.
(d) The Issuing Bank and the Banks agree that, while a Letter
of Credit is outstanding and prior to the Termination Date, at the option of any
Borrower and upon the written request of such Borrower received by the Issuing
49
Bank (with a copy sent by such Borrower to the Agent) at least five days (or
such shorter time as the Issuing Bank may agree in a particular instance in its
sole discretion) prior to the proposed date of notification of renewal, the
Issuing Bank shall be entitled to authorize the automatic renewal of any Letter
of Credit issued by it. Each such request for renewal of a Letter of Credit
shall be made by facsimile, confirmed immediately in an original writing, in the
form of a Letter of Credit Amendment Application, and shall specify in form and
detail satisfactory to the Issuing Bank: (i) the Letter of Credit to be renewed;
(ii) the proposed date of notification of renewal of the Letter of Credit (which
shall be a Business Day); (iii) the revised expiry date of the Letter of Credit;
and (iv) such other matters as the Issuing Bank may reasonably require. The
Issuing Bank shall be under no obligation to renew any Letter of Credit if the
Issuing Bank would have no obligation at such time to issue or amend such Letter
of Credit in its renewed form under the terms of this Agreement. If any
outstanding Letter of Credit shall provide that it shall be automatically
renewed unless the beneficiary thereof receives notice from the Issuing Bank
that such Letter of Credit shall not be renewed, and if at the time of renewal
the Issuing Bank would be entitled to authorize the automatic renewal of such
Letter of Credit in accordance with this Section 3.02(d) upon the request of the
relevant Borrower but the Issuing Bank shall not have received any Letter of
Credit Amendment Application from such Borrower with respect to such renewal or
other written direction by such Borrower with respect thereto, the Issuing Bank
shall nonetheless be permitted to allow such Letter of Credit to be renewed, and
such Borrower and the Banks hereby authorize such renewal, and, accordingly, the
Issuing Bank shall be deemed to have received a Letter of Credit Amendment
Application from such Borrower requesting such renewal.
(e) This Agreement shall control in the event of any conflict
with any Letter of Credit Related Document (other than any Letter of Credit).
(f) The Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or renewal of a Letter of Credit.
3.03 Participations, Drawings and Reimbursements.
-------------------------------------------
(a) Immediately upon the issuance of each Letter of Credit,
each Bank shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Issuing Bank a participation in such Letter of Credit and
each drawing thereunder in an amount equal to the product of (i) the Commitment
Percentage of such Bank times (ii) the maximum amount available to be drawn
under such Letter of Credit and the amount of such drawing, respectively.
(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the Issuing Bank will
promptly notify the relevant Borrower. Such Borrower shall reimburse the Issuing
Bank prior to 12:00 Noon (New York City time), on each date that any amount is
paid by the Issuing Bank under any Letter of Credit (each such date, a
"Disbursement Date"), in an amount equal to the amount so paid by the Issuing
Bank, provided that if such drawing occurs after 12:00 Noon (New York City
time), the Disbursement Date shall be deemed to be the day following the date of
such drawing. In the event any Borrower shall fail to reimburse the Issuing Bank
for the full amount of any drawing under any Letter of Credit by 12:00 Noon (New
York City time) on the Disbursement Date, the Issuing Bank will promptly notify
the Agent and the Agent will promptly notify each Bank thereof, and such
50
Borrower shall be deemed to have requested that Committed Loans consisting of
Base Rate Committed Loans be made by the Banks (and hereby irrevocably consents
to such deemed request) pursuant to Section 2.01(a) to be disbursed on the
Disbursement Date under such Letter of Credit, subject to the amount of the
unutilized portion of the Aggregate Commitment and subject to the conditions set
forth in Section 5.02. Any notice given by the Issuing Bank or the Agent
pursuant to this Section 3.03(b) may be oral if immediately confirmed in writing
(including by facsimile); provided, however, that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.
(c) Each Bank shall upon receipt of any notice pursuant to
Section 3.03(b) make available to the Agent for the account of the Issuing Bank
an amount in Dollars and in immediately available funds equal to its Commitment
Percentage of the amount of the drawing, whereupon the participating Banks shall
(subject to Section 3.03(d)) each be deemed to have made a Committed Loan
consisting of a Base Rate Committed Loan to the relevant Borrower in that
amount. If any Bank so notified shall fail to make available to the Agent for
the account of the Issuing Bank the amount of such Bank's Commitment Percentage
of the amount of the drawing by no later than 2:00 P.M. (New York City time) on
the Disbursement Date, then interest shall accrue on such Bank's obligation to
make such payment, from the Disbursement Date to the date such Bank makes such
payment, at a rate per annum equal to (i) the Federal Funds Rate in effect from
time to time during the period commencing on the later of the Disbursement Date
and the date such Bank receives notice of the Disbursement Date prior to 2:00
P.M. (New York City time) on such date and ending on the date three Business
Days thereafter, and (ii) thereafter at the Base Rate as in effect from time to
time. The Agent will promptly give notice of the occurrence of the Disbursement
Date, but failure of the Agent to give any such notice on the Disbursement Date
or in sufficient time to enable any Bank to effect such payment on such date
shall not relieve such Bank from its obligations under this Section 3.03.
(d) With respect to any unreimbursed drawing which is not
converted into Committed Loans consisting of Base Rate Committed Loans to any
Borrower in whole or in part, because of such Borrower's failure to satisfy the
conditions set forth in Section 5.02 or for any other reason, such Borrower
shall be deemed to have incurred from the Issuing Bank a Letter of Credit
Borrowing in the amount of such drawing, which Letter of Credit Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
a rate per annum equal to the Base Rate, plus the Applicable Margin for Base
Rate Loans, plus in the case of any Letter of Credit Borrowing outstanding after
the Disbursement Date, 2% per annum, and each Bank's payment to the Issuing Bank
pursuant to Section 3.03(c) shall be deemed payment in respect of its
participation in such Letter of Credit Borrowing.
(e) Each Bank's obligation in accordance with this Agreement
to make the Committed Loans or fund its participation in any Letter of Credit
Borrowing, as contemplated by this Section 3.03, as a result of a drawing under
a Letter of Credit shall be absolute and unconditional and without recourse to
51
the Issuing Bank and shall not be affected by any circumstance, including (i)
any set-off, counterclaim, defense or other right which such Bank may have
against the Issuing Bank, any Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default, an Event of Default
or a Material Adverse Effect; or (iii) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
3.04 Repayment of Participations.
(a) Upon (and only upon) receipt by the Agent for the account
of the Issuing Bank of funds from any Borrower (i) in reimbursement of any
payment made by the Issuing Bank under the Letter of Credit with respect to
which any Bank has paid the Agent for the account of the Issuing Bank for such
Bank's participation in the Letter of Credit pursuant to Section 3.03, or (ii)
in payment of interest on amounts described in clause (i), the Agent will pay to
each Bank, in the same funds as those received by the Agent for the account of
the Issuing Bank, the amount of such Bank's Commitment Percentage of such funds,
and the Issuing Bank shall receive the amount of the Commitment Percentage of
such funds of any Bank that did not so pay the Agent for the account of the
Issuing Bank.
(b) If the Agent or the Issuing Bank is required at any time
to return to any Borrower, or to a trustee, receiver, liquidator, custodian, or
any similar official in any Insolvency Proceeding, any portion of the payments
made by such Borrower to the Agent for the account of the Issuing Bank pursuant
to Section 3.04(a) in reimbursement of a payment made under the Letter of Credit
or interest or fee thereon, each Bank shall, on demand of the Agent, forthwith
return to the Agent or the Issuing Bank the amount of its Commitment Percentage
of any amounts so returned by the Agent or the Issuing Bank plus interest
thereon from the date such demand is made to the date such amounts are returned
by such Bank to the Agent or the Issuing Bank, at a rate per annum equal to the
Federal Funds Rate in effect from time to time.
3.05 Role of the Issuing Bank.
(a) Each Bank and the Borrowers agree that, in paying any
drawing under a Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) Neither the Issuing Bank nor any of the respective
correspondents, participants or assignees of the Issuing Bank shall be liable to
any Bank for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Majority Banks; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any Letter of Credit
Related Document.
(c) Each Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit. Neither the Issuing Bank nor any of the respective correspondents,
participants or assignees of the Issuing Bank, shall be liable or responsible
for any of the matters described in clauses (i) through (vii) of Section 3.06;
52
provided, however, that a Borrower may have a claim against the Issuing Bank,
and the Issuing Bank may be liable to such Borrower, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by such Borrower which such Borrower proves were caused by the Issuing
Bank's willful misconduct or gross negligence or the Issuing Bank's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing: (i) the Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii) the Issuing
Bank shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
3.06 Obligations Absolute. The obligations of the Borrowers
under this Agreement and any Letter of Credit Related Document to reimburse the
Issuing Bank for a drawing under a Letter of Credit, and to repay any Letter of
Credit Borrowing and any drawing under a Letter of Credit converted into
Committed Loans, shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement and each such other
Letter of Credit Related Document under all circumstances, including the
following:
(i) any lack of validity or enforceability of this Agreement
or any Letter of Credit Related Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of any
Borrower in respect of any Letter of Credit or any other
amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that any Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any
Person for whom any such beneficiary or any such transferee
may be acting), the Issuing Bank or any other Person, whether
in connection with this Agreement, the transactions
contemplated hereby or by the Letter of Credit Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter
of Credit;
(v) any payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any
payment made by the Issuing Bank under any Letter of Credit to
any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
53
liquidator, receiver or other representative of or successor
to any beneficiary or any transferee of any Letter of Credit,
including any arising in connection with any Insolvency
Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any other guaranty, for all or any
of the obligations of any Borrower in respect of any Letter of
Credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense
available to, or a discharge of, any Borrower or a guarantor.
3.07 Cash Collateral Pledge. Upon (a) the request of the
Agent, (i) if the Issuing Bank has honored any full or partial drawing request
on any Letter of Credit and such drawing has resulted in a Letter of Credit
Borrowing hereunder, or (ii) if, as of the Termination Date, any Letters of
Credit may for any reason remain outstanding and partially or wholly undrawn, or
(b) the occurrence of the circumstances described in Section 2.10(a) requiring a
Borrower to Cash Collateralize Letters of Credit, then such Borrower shall
immediately Cash Collateralize the Letter of Credit Obligations in an amount
equal to such Letter of Credit Obligations (or in the case of clause (ii) above,
the excess amount required pursuant to Section 2.10(a)) and such cash will be
held as security for all Obligations of the Borrowers to the Banks hereunder in
a cash collateral account to be established by the Agent, and during the
existence of an Event of Default, the Agent may, upon the request of the
Majority Banks, apply such amounts so held to the payment of such outstanding
Obligations.
3.08 Letter of Credit Fees.
(a) The Borrowers shall pay to the Agent for the account of
each Bank a letter of credit fee with respect to the Letters of Credit computed
on the average daily maximum amount available to be drawn of the outstanding
Letters of Credit, on each Interest Payment Date for Base Rate Committed Loans
based upon Letters of Credit outstanding for the previous three-month period and
such Letter of Credit fee shall be due and payable in arrears on each such
Interest Payment Date for Base Rate Committed Loans. The letter of credit fee
shall be equal to the Applicable Margin for Loans bearing interest based on
IBOR/LIBOR as set forth in Section 2.12(a), as in effect from time to time
during the periods of calculation thereof.
(b) The Borrowers shall pay to the Issuing Bank a letter of
credit fronting fee for each Letter of Credit issued by the Issuing Bank equal
to .0625% per annum of the face amount of such Letter of Credit. Such Letter of
Credit fronting fee shall be due and payable in arrears on each Interest Payment
Date for Base Rate Committed Loans.
(c) The Borrowers shall pay to the Issuing Bank from time to
time on demand the normal issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the Issuing Bank relating to
letters of credit as from time to time in effect.
3.09 Uniform Customs and Practice. The Uniform Customs and
Practice for Documentary Credits as most recently published by the International
54
Chamber of Commerce shall in all respects be deemed a part of this Article III
as if incorporated herein and (unless otherwise expressly provided in the
Letters of Credit) shall apply to the Letters of Credit.
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 Taxes.
(a) Subject to Section 4.01(g), any and all payments by Old
USI and each Borrower to any Bank or the Agent under this Agreement shall be
made free and clear of, and without deduction or withholding for or on account
of, any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, as the case may be, such taxes (including income
taxes or franchise taxes) as are imposed on or measured by such Person's net
income by the jurisdiction under the laws of which such Person is organized or
has its principal office or maintains a Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
(b) In addition, the Borrowers and Old USI shall pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) Subject to Section 4.01(g), the Borrowers and Old USI
shall indemnify and hold harmless each Bank and the Agent for the full amount of
Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under Section 4.01(d)) paid by such Bank or the
Agent and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted.
(d) If any Borrower or Old USI shall be required by law to
deduct or withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to any Bank or the Agent, then, subject to Section 4.01(g):
(i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions
applicable to additional sums payable under this Section
4.01(d)) such Bank or the Agent, as the case may be, receives
an amount equal to the sum it would have received had no such
deductions or withholdings been made;
(ii) the relevant Borrower or Old USI shall make such
deductions; and
(iii) the relevant Borrower or Old USI shall pay the full
amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
55
(e) Within 30 days after the date of any payment by any
Borrower or Old USI of Taxes or Other Taxes, such Person shall furnish to the
Agent, at its address referred to in Section 12.02, the original or a certified
copy of a receipt evidencing payment thereof, or other evidence of payment
satisfactory to the Agent.
(f) Each Bank which is organized under the laws of a
jurisdiction outside the United States agrees that:
(i) it shall, no later than the Effective Date (or, in the
case of a Bank which becomes a party hereto pursuant to
Section 12.07 after the Effective Date, the date upon which
such Bank becomes a party hereto) deliver to each Borrower
through the Agent two accurate and complete signed originals
of Internal Revenue Service Form 4224 or any successor thereto
("Form 4224"), or two accurate and complete signed originals
of Internal Revenue Service Form 1001 or any successor thereto
("Form 1001"), as appropriate, in each case indicating that
such Bank is on the date of delivery thereof entitled to
receive all payments under this Agreement free from
withholding of United States Federal income tax;
(ii) if at any time such Bank makes any changes, including a
change of a Lending Office or its principal office, place of
incorporation or fiscal residence, necessitating a new Form
4224 or Form 1001, it shall, to the extent it is legally
entitled to do so, promptly deliver to each Borrower through
the Agent in replacement for, or in addition to, the forms
previously delivered by it hereunder, two accurate and
complete signed originals of Form 4224 or Form 1001, as
appropriate, in each case indicating that such Bank is on the
date of delivery thereof entitled to receive all payments
under this Agreement free from withholding of United States
Federal income tax;
(iii) it shall, to the extent it is legally entitled to do so,
before or promptly after the occurrence of any event
(including the passing of time but excluding any event
mentioned in clause (ii) above) requiring a change in or
renewal of the most recent Form 4224 or Form 1001 previously
delivered by such Bank, deliver to each Borrower through the
Agent two accurate and complete original signed copies of Form
4224 or Form 1001 in replacement for the forms previously
delivered by such Bank indicating that such Bank continues to
be entitled to receive all payments under this Agreement free
from any withholding of any United States Federal income tax;
(iv) it shall, to the extent it is legally entitled to do so,
promptly upon a Borrower's or the Agent's reasonable request
to that effect, deliver to such Borrower or the Agent (as the
case may be) such other forms or similar documentation as may
be required from time to time by any applicable law, treaty,
rule or regulation in order to establish such Bank's complete
exemption from withholding on all payments under this
Agreement;
56
(v) if such Bank claims or is entitled to claim exemption from
withholding tax under a United States tax treaty by providing
a Form 1001 and such Bank sells or grants a participation of
all or part of its rights under this Agreement, such Bank
shall notify the Agent of the percentage amount in which it is
no longer the beneficial owner under this Agreement. To the
extent of this percentage amount, the Agent shall treat such
Bank's Form 1001 as no longer in compliance with this Section
4.01(f). In the event a Bank claiming exemption from United
States withholding tax by filing Form 4224 with the Agent
sells or grants a participation in its rights under this
Agreement, such Bank agrees to undertake sole responsibility
for complying with the withholding tax requirements imposed by
sections 1441 and 1442 of the Code; and
(vi) without limiting or restricting any Bank's right to
increased amounts under Section 4.01(d) from the Borrowers and
Old USI upon satisfaction of such Bank's obligations under the
provisions of this Section 4.01(f), if such Bank is entitled
to a reduction in the applicable withholding tax, the Agent
may (but shall not be obligated to) withhold from any interest
to such Bank an amount equivalent to the applicable
withholding tax after taking into account such reduction. If
the forms or other administrative documentation required by
clause (i) are not delivered to the Agent, then the Agent
shall withhold from any interest payment to Bank not providing
such forms or other documentation, an amount equivalent to the
applicable withholding tax and in addition, the Agent shall
also withhold against periodic payments other than interest
payments to the extent United States withholding tax is not
eliminated by obtaining Form 4224 or Form 1001. The Borrowers
shall indemnify and hold harmless the Agent and each of its
officers, directors, employees, counsel, agents and
attorney-in-fact, on an after tax basis, from and against all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses or disbursements
(including reasonable attorney's fees) of any kind whatsoever
incurred as a result of or in connection with the Agent's
failure to withhold as provided pursuant to the preceding
sentence, unless such failure constitutes gross negligence or
willful misconduct of the Agent itself as the same is
determined by a final judgment of a court of competent
jurisdiction and the obligations in this sentence shall
survive payment of all other Obligations.
(g) Neither any Borrower nor Old USI will be required to pay
any additional amounts in respect of Taxes imposed by the United States Federal
government pursuant to Sections 4.01(a) or 4.01(d) to any Bank:
(i) if and to the extent the obligation to pay such additional
amounts would not have arisen but for a failure by such Bank
to comply with its obligations under Section 4.01(f) in
respect of its Lending Office;
(ii) if such Bank shall have delivered to the Borrowers a Form
4224 in respect of its Lending Office pursuant to Section
57
4.01(f)(i)-(iii) or such other forms or similar documentation
pursuant to Section 4.01(f)(iv), to the extent such Bank shall
not at any time be entitled to exemption from all withholding
of United States Federal income tax in respect of payments by
the Borrowers or Old USI hereunder for the account of such
Lending Office for any reason other than a change in United
States law or regulations or in the official interpretation of
such law or regulations by any Governmental Authority charged
with the interpretation or administration thereof (whether or
not having the force of law) after the date of delivery of
such Form 4224 or such other forms or similar documentation;
or
(iii) if such Bank shall have delivered to the Borrowers a
Form 1001 in respect of its Lending Office pursuant to Section
4.01(f)(i)-(iii) or such other forms or similar documentation
pursuant to Section 4.01(f)(iv), to the extent such Bank shall
not at any time be entitled to exemption from all deductions
or withholding of United States Federal income tax in respect
of payments by any Borrower or Old USI hereunder for the
account of such Lending Office for any reason other than a
change in United States law or regulations or any applicable
tax treaty or regulations or in the official interpretation of
any such law, treaty or regulations by any Governmental
Authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the
date of delivery of such Form 1001 or such other forms or
similar documentation.
(h) Each Bank agrees that it shall, at any time upon
reasonable advance request in writing by a Borrower or the Agent, promptly
deliver such certification or other documentation as may be required under the
law or regulation in any applicable jurisdiction and which such Bank is entitled
to submit to avoid or reduce withholding taxes on amounts to be paid by any
Borrower or Old USI and received by such Bank pursuant to this Agreement or any
other Loan Document.
(i) The Borrowers and Old USI shall indemnify each Bank and
the Agent, to the extent required by this Section 4.01 within 30 days after
receipt of written request from such Bank or the Agent thereof accompanied by a
written statement describing in reasonable detail the Taxes or Other Taxes that
are the subject of the basis for such indemnity and the computation of the
amount payable.
(j) If a Bank or the Agent shall become aware that it is
entitled to claim a refund of any withholding Taxes or Other Taxes paid by Old
USI or any Borrower under this Section 4.01 from the taxing authority imposing
such Taxes or Other Taxes, such Bank or the Agent, as the case may be, shall, at
the expense of the Borrowers, use reasonable efforts to obtain such refund and
upon receipt thereof, shall promptly pay to Old USI or such Borrower the amount
so received.
(k) If any Borrower or Old USI is required to pay additional
amounts to any Bank or the Agent pursuant to Section 4.01(d), then such Bank
shall, upon such Borrower's request, use its reasonable best efforts (consistent
with policy considerations of such Bank) to change the jurisdiction of its
58
Lending Office so as to reduce or eliminate any such additional payment which
may thereafter accrue if such change in the reasonable judgment of such Bank is
not otherwise disadvantageous to such Bank.
(l) Each Bank agrees that it will (i) take all reasonable
actions reasonably requested by Old USI or any Borrower (consistent with policy
considerations by such Bank) to maintain all exemptions, if any, available to it
from withholding taxes (whether available by treaty or existing administrative
waiver), and (ii) to the extent reasonable, otherwise cooperate with Old USI or
any Borrower to minimize any amounts payable by Old USI or any Borrower under
this Section 4.01, in any case described in the preceding clauses (i) and (ii),
however, only if such action or cooperation is not disadvantageous to such Bank
in the reasonable judgment of such Bank.
4.02 Illegality.
(a) If any Bank shall determine that (i) the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration thereof, has made it unlawful, or (ii) any
central bank or other Governmental Authority has asserted that it is unlawful
for any Bank or its Lending Office to make a Eurodollar Loan or IBOR Loan or to
convert any Base Rate Committed Loan to a Eurodollar Committed Loan, then, on
notice thereof by such Bank to the Borrowers through the Agent, the obligation
of such Bank to make or convert any such Loans (including in respect of any
Eurodollar Bid Loan as to which the Company has accepted such Bank's Competitive
Bid, but as to which the Borrowing Date has not occurred) shall be suspended
until such Bank shall have notified the Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank shall determine that it is unlawful to maintain
any Eurodollar Loan or IBOR Loan, the Borrowers shall, unless otherwise
permitted under paragraph (c) below, prepay in full such Eurodollar Loan or IBOR
Loan of such Bank then outstanding, together with interest accrued thereon,
either on the last day of the Interest Period thereof if such Bank may lawfully
continue to maintain such Eurodollar Loan or IBOR Loan to such day, or
immediately, if the Bank may not lawfully continue to maintain such Eurodollar
Loan, together with any amounts required to be paid in connection therewith
pursuant to Section 4.04.
(c) If the Borrowers are required to prepay any Eurodollar
Committed Loan, Eurodollar Multicurrency Loan or IBOR Loan immediately, then
concurrently with such prepayment, the Borrowers shall borrow from the affected
Bank, in the aggregate amount of such repayment, Base Rate Committed Loans.
(d) Before giving any notice to the Agent pursuant to this
Section 4.02, the affected Bank shall designate a different Lending Office with
respect to its Eurodollar Loans or IBOR Loans if such designation will avoid the
need for giving such notice or making such demand and will not, in the judgment
of such Bank, be illegal, inconsistent with the policies of such Bank or
otherwise disadvantageous to such Bank.
4.03 Increased Costs and Reduction of Return.
59
(a) If any Bank or the Issuing Bank shall determine that, due
to either (i) the introduction of or any change in or in the interpretation or
administration of any law or regulation (other than any law or regulation
relating to taxes, including those relating to Taxes or Other Taxes) after the
Effective Date or (ii) the compliance with any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law) made after the Effective Date, there shall be any increase in the cost to
such Bank of agreeing to make or making, funding or maintaining any Eurodollar
Loans or IBOR Loans or participating in any Letter of Credit Obligations, or any
increase in the cost to the Issuing Bank of agreeing to issue, issuing or
maintaining any Letter of Credit or of agreeing to make or making, funding or
maintaining any unpaid drawing under any Letter of Credit, then the Borrowers
shall be liable for, and shall from time to time, upon demand therefor by such
Bank or the Issuing Bank, as the case may be (with a copy of such demand to the
Agent), pay to the Agent for the account of such Bank or the Issuing Bank,
additional amounts as are sufficient to compensate such Bank or the Issuing Bank
for such increased costs.
(b) If any Bank or the Issuing Bank shall have determined that
(i) the introduction of any Capital Adequacy Regulation after the Effective
Date, (ii) any change in any Capital Adequacy Regulation after the Effective
Date, (iii) any change in the interpretation or administration of any Capital
Adequacy Regulation by any central bank or other Governmental Authority charged
with the interpretation or administration thereof after the Effective Date, or
(iv) compliance by any Bank (or its Lending Office) or the Issuing Bank, as the
case may be, or any corporation controlling such Bank or the Issuing Bank, as
the case may be, with any Capital Adequacy Regulation adopted after the
Effective Date, affects or would affect the amount of capital required or
expected to be maintained by such Bank or the Issuing Bank or any corporation
controlling such Bank or the Issuing Bank and (taking into consideration such
Bank's, the Issuing Bank's or such corporation's policies with respect to
capital adequacy and such Bank's, the Issuing Bank's or corporation's desired
return on capital) determines that the amount of such capital is (or is required
to be) increased as a consequence of its Commitment, Loans, participations in
Letters of Credit, or obligations under this Agreement, then, upon demand of
such Bank or the Issuing Bank (with a copy to the Agent), the Borrowers shall be
liable for and shall immediately pay to such Bank or the Issuing Bank, from time
to time as specified by such Bank or the Issuing Bank, additional amounts
sufficient to compensate such Bank or the Issuing Bank for such increase.
4.04 Funding Losses. The Borrowers shall reimburse each Bank
and to hold each Bank harmless from any loss, cost or expense (other than loss
of margin) which such Bank may sustain or incur as a consequence of:
(a) any failure by any Borrower to make any payment of
principal of any Eurodollar Loan or IBOR Loan (including payments made after any
acceleration thereof);
(b) any failure by any Borrower to borrow a Eurodollar
Committed Loan, Eurodollar Multicurrency Loan or IBOR Loan or continue a
Eurodollar Committed Loan or a Eurodollar Multicurrency Loan or convert a Base
Rate Committed Loan to a Eurodollar Committed Loan after such Borrower has given
(or is deemed to have given) a Notice of Borrowing, a request for a Borrowing of
Swingline Loans or a Notice of Conversion/ Continuation as the case may be;
60
(c) any failure by any Borrower to make any prepayment of a
Eurodollar Committed Loan or Eurodollar Multicurrency Loan after such Borrower
has given a notice in accordance with Section 2.09;
(d) any payment or prepayment (including pursuant to Sections
2.09 or 2.10 or after acceleration thereof) of any Eurodollar Loan or IBOR Loan
for any reason whatsoever on a day which is not the last day of the Interest
Period with respect thereto; or
(e) any prepayment of a Bid Loan before such payment is due
and owing;
including any such loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain any Eurodollar
Loan, IBOR Loan or Bid Loan hereunder or from fees payable to terminate the
deposits from which such funds were obtained.
4.05 Inability to Determine Rates.
(a) Notwithstanding any provisions herein to the contrary, if,
in relation to any proposed Eurodollar Loan or IBOR Loan, (i) the Agent or the
Swingline Bank shall have determined (which determination shall be conclusive
and binding upon all parties hereto) that by reason of circumstances affecting
the interbank markets adequate and fair means do not exist for ascertaining
LIBOR or IBOR to be applicable to such Eurodollar Loan or IBOR Loan or (ii) the
Agent shall have received notice from the Majority Banks or the Swingline Bank
that LIBOR or IBOR determined or to be determined for any Interest Period will
not adequately and fairly reflect the cost to such Banks or the Swingline Bank
(as conclusively certified by such Banks or the Swingline Bank) of making or
maintaining their affected Loans during such affected Interest Period, then, the
obligation of the Banks to make, continue or maintain their affected Eurodollar
Committed Loans or Eurodollar Multicurrency Loans or to convert Base Rate
Committed Loans into Eurodollar Committed Loans which would be so affected or
the obligation of the Swingline Bank to make or maintain IBOR Loans which are so
affected shall be suspended until the Agent upon the instruction of the Majority
Banks or the Swingline Bank, as applicable, revokes such notice in writing. If,
notwithstanding the provisions of this Section 4.05, any Bank has made available
to any Borrower its Commitment Percentage of any such proposed Eurodollar
Committed Loan, then such Borrower shall immediately repay the amount so made
available to it by such Bank, together with accrued interest thereon, if any.
(b) In the event, and on each occasion, that on the day three
Business Days prior to the commencement of any Interest Period for a
Multicurrency Borrowing the Agent or the Multicurrency Banks shall have
determined that deposits in the applicable currency in the requested principal
amounts of the Eurodollar Multicurrency Loans are not generally available in the
London interbank market or the international interbank market, as applicable, to
the Majority Multicurrency Banks, the Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such determination to the
61
Borrowers and any request by any Borrower for a Multicurrency Borrowing in any
affected currency shall be of no force or effect (and such Borrowing, if already
outstanding, shall be prepaid at the end of the Interest Period currently in
effect therefor).
4.06 Reserves on Eurodollar Committed Loans, Eurodollar
Multicurrency Loans or IBOR Loans. The Borrowers shall pay to each Bank, if and
as long as such Bank shall be required under regulations of the Federal Reserve
Board or any other governmental or monetary authority, as applicable, to
maintain reserves, deposits or credit balances with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as "Eurocurrency liabilities"), other Eligible Currencies, additional
costs on the unpaid principal amount of each Eurodollar Committed Loan,
Eurodollar Multicurrency Loan or IBOR Loan equal to actual costs of such
reserves allocated to such Committed Loan or such Multicurrency Loan by such
Bank (as determined by such Bank in good faith, which determination shall be
conclusive absent manifest error), payable on each date on which interest is
payable on such Committed Loan or such Eurodollar Multicurrency Loan, provided
that the Borrowers shall have received at least 15 days' prior written notice
(with a copy to the Agent) of such additional interest from the Bank. If a Bank
fails to give such notice 15 days prior to the relevant Interest Payment Date,
such additional interest shall be payable 15 days after receipt by the Borrowers
of such notice.
4.07 Certificates of Banks. Any Bank, the Swingline Bank or
the Issuing Bank claiming reimbursement or compensation pursuant to this Article
IV shall deliver to the Borrowers or Old USI, as applicable, (with a copy to the
Agent) a certificate setting forth in reasonable detail the amount payable to
such Person hereunder and such certificate shall be conclusive and binding on
the Borrowers or Old USI in the absence of manifest error.
4.08 Change of Lending Office, Replacement Bank.
(a) Each Bank agrees that upon the occurrence of an event
giving rise to the operation of Section 4.02 or 4.03 with respect to such Bank,
it will if so requested by the Borrowers, use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Lending Office for any Loans affected by such event with the object of
avoiding the consequence of the event giving rise to the operation of such
section; provided, however, that such designation would not, in the sole
judgment of such Bank, be otherwise disadvantageous to such Bank. Nothing in
this Section 4.08(a) shall affect or postpone any of the obligations of the
Borrowers or the right of any Bank provided in Section 4.02 or 4.03.
(b) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, (x) upon the occurrence of any event that
obligates any Borrower or Old USI to pay any amount under Section 4.01 or giving
rise to the operation of Section 4.02 or Section 4.03 with respect to such Bank
or (y) as provided in Section 12.01(b) in the case of certain refusals by a Bank
to consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Majority Banks, the
Borrowers shall have the right, if no Default or Event of Default then exists or
will exist immediately after giving effect to the respective replacement, to
replace such Bank (the "Replaced Bank") by designating another Bank or an
Eligible Assignee (such Bank or Eligible Assignee being herein called a
62
"Replacement Bank") to which such Replaced Bank shall assign, in accordance with
Section 12.07 and without recourse to or warranty by, or expense to, such
Replaced Bank, the rights and obligation of such Replaced Bank hereunder (except
for such rights as survive repayment of the Loans), and, upon such assignment,
such Replaced Bank shall no longer be a party hereto or have any rights
hereunder and such Replacement Bank shall succeed to the rights and obligations
of such Replaced Bank hereunder. The Borrowers shall pay to such Replaced Bank
in same day funds on the date of replacement all interest, fees and other
amounts then due and owing such Replaced Bank by the Borrowers hereunder to and
including the date of replacement, including, without limitation, costs incurred
under Section 4.01, 4.02 or 4.03.
4.09 Survival. The agreements and obligations of Old USI and
the Borrowers in this Article IV shall survive the payment of all other
Obligations.
ARTICLE V.
CONDITIONS PRECEDENT
5.01 Conditions to the Effective Date. The occurrence of the
Effective Date, the obligation of each Bank to make Committed Loans and
Multicurrency Loans hereunder, to receive through the Agent the initial
Competitive Bid Request, and the obligation of the Issuing Bank to issue Letters
of Credit on the Effective Date is subject to the condition that the Agent shall
have received on or before the date for making such Committed Loans and
Multicurrency Loans and issuing such Letters of Credit all of the following, in
form and substance reasonably satisfactory to the Agent and each Bank and in
sufficient copies for each Bank:
(a) Credit Agreement. This Agreement executed by each
Borrower, Old USI, the Agent, the Issuing Bank, the Swingline Bank and each of
the Banks (or, in the case of any party as to which an executed counterpart
shall not have been received, receipt by the Agent in form satisfactory to it of
facsimile or other written confirmation from such party of execution of a
counterpart hereof by such party);
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of
each Borrower approving and authorizing the execution, delivery and performance
by such Borrower of this Agreement and the other Loan Documents to be delivered
by such Borrower hereunder, and authorizing the borrowing of the Loans and the
issuance of the Letters of Credit, certified as of the Effective Date by the
secretary or an assistant secretary of such Borrower;
(ii) Copies of the resolutions of the board of directors of
Old USI approving and authorizing the execution, delivery and performance by Old
USI of this Agreement (including the guaranty of the Obligations of the
Borrowers) and the other Loan Documents to be delivered by Old USI hereunder,
certified by the secretary or an assistant secretary of Old USI;
63
(iii) Certificates of the secretary or assistant secretary of
Old USI and each Borrower certifying the names and true signatures of the
officers of Old USI and such Borrower authorized to execute, deliver and
perform, as applicable, this Agreement and all other Loan Documents, notices,
requests and other communications to be delivered hereunder or thereunder;
(c) Bring-down Certificate. Bring-down certificate of Old USI
and each Borrower from the Secretary of State of the State of Delaware, dated
the Effective Date;
(d) Legal Opinions.
(i) A satisfactory opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
to Old USI and the Borrowers, addressed to the Agent and the Banks, containing
opinions substantially in the form of Exhibit F and as to such other matters as
the Agent may reasonably request;
(ii) A satisfactory opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., general
counsel to Old USI and the Borrowers addressed to the Agent and the Banks,
containing opinions substantially in the form of Exhibit G and as to such other
matters as the Agent may reasonably request; and
(iii) An opinion of White & Case LLP, special counsel to the
Agent and the Banks, containing opinions substantially in the form of Exhibit H;
(e) Payment of Fees and Expenses. Evidence that all fees and
reasonable costs and expenses (including Attorney Costs) payable by the
Borrowers on or before the Effective Date have been paid;
(f) Certificates. Certificates signed by a Responsible Officer
of Old USI and each Borrower, dated as of the Effective Date stating that:
(A) The representations and warranties of Old USI and each
Borrower contained in Article VI are true and correct on and as of such date, as
though made on and as of such date (except to the extent such representations
and warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date);
(B) no Default or Event of Default exists or would result from
any Borrowing on the Effective Date; and
(C) neither Old USI nor any Borrower shall have any
Indebtedness outstanding except as shall be permitted under Section 8.04;
(g) Senior Notes. On or prior to the Effective Date, (i) the
Company shall have issued the Senior Notes and received gross cash proceeds
therefrom (before the payment of fees and expenses in connection therewith) in
an aggregate amount of at least $100,000,000, (ii) the Agent shall have received
copies of the Senior Note Documents certified as true and correct by an
appropriate officer of the Company, and (iii) the Senior Note Documents shall be
in full force and effect and the terms and conditions thereof shall be in form
and substance reasonably satisfactory to the Agent and Majority Banks;
64
(h) Existing Credit Agreement; etc. On the Effective Date,
concurrently with the incurrence of Loans hereunder, the total commitments under
the Existing Credit Agreement shall have been terminated, and all loans
thereunder shall have been repaid in cash in full, together with all accrued
interest and fees thereon, all letters of credit issued thereunder shall have
been terminated or assumed as Letters of Credit hereunder, and all other amounts
owing pursuant to the Existing Credit Agreement shall have been repaid in full.
The Agent shall have received evidence in form, scope and substance satisfactory
to it that the matters set forth in this Section 5.01(h) have been satisfied on
such date; and
(i) Other Documents. Such other approvals, opinions or
documents, including financing statements, as the Agent or any Bank may
reasonably request.
5.02 Conditions to all Borrowings and the Issuance of any
Letters of Credit. The obligation of each Bank to make any Loan agreed to be
made by it hereunder, or any Bid Loan as to which any Borrower has accepted the
relevant Competitive Bid, and the obligation of the Issuing Bank to issue, renew
or amend any Letter of Credit is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or date of issuance.
(a) Notice. The Agent shall have received a Notice of
Borrowing in the case of Committed Loans or Multicurrency Loans, or in the case
of a Swingline Loan, the notice required under Section 2.03(f); or in the case
of any issuance of any Letter of Credit, the Issuing Bank and the Agent shall
have received a Letter of Credit Application, as required under Section 3.02.
(b) Continuation of Representations and Warranties. The
representations and warranties made by Old USI and each Borrower contained in
Article VI and in any other Loan Document shall be true and correct in all
material respects on and as of such Borrowing Date or date of issuance (except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date).
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing or issuance of Letter of Credit.
(d) No Material Adverse Effect. Since the Effective Date, no
events have occurred which, individually or in the aggregate, have had a
Material Adverse Effect.
Each Notice of Borrowing, Competitive Bid Request, request for
a Swingline Loan or Letter of Credit Application submitted by any Borrower
hereunder shall be deemed to constitute a representation and warranty by such
Borrower hereunder, as of the date of each such notice or application and as of
the date of each Borrowing that the applicable conditions in this Section 5.02
are satisfied.
65
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants with respect to itself
and its Subsidiaries and Old USI represents and warrants with respect to itself,
in each case to the Agent and each Bank that:
6.01 Corporate Existence and Power. It and each of its
Material Subsidiaries:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own or hold under lease its property
or assets, conduct its business and execute, deliver, and perform its
obligations under, the Loan Documents;
(c) is duly qualified to do business as a foreign corporation,
and licensed and in good standing, under the laws of each jurisdiction where its
ownership, lease or operation of property or the nature or conduct of its
business requires such qualification or license except where the failure so to
qualify could not reasonably be expected to have a Material Adverse Effect; and
(d) is in compliance with all Requirements of Law, except to
the extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
6.02 Corporate Authorization; No Contravention. The execution,
delivery and performance by each Borrower and its Subsidiaries and Old USI of
this Agreement, and any other Loan Document to which such Person is party, have
been duly authorized by all necessary corporate action, and do not and will not:
(a) contravene the terms of any of such Person's charter or
by-laws;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any material
Contractual Obligation to which such Person is a party or any order, injunction,
writ or decree of any Governmental Authority to which such Person or its
property is subject; or
(c) violate any Requirement of Law.
6.03 Governmental Authorization. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with
(except for any registrations or approvals required under state blue sky
securities laws in connection with the sale of the Senior Notes), any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, New USI or any of
its Subsidiaries of this Agreement or any other Loan Document.
66
6.04 Binding Effect. This Agreement, each other Loan Document
and each other Loan Document to which New USI or any of its Subsidiaries is a
party constitute the legal, valid and binding obligations of New USI and each of
its Subsidiaries to the extent such Person is a party thereto, enforceable
against such Person in accordance with their respective 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 of general applicability.
6.05 Litigation. There are no actions, suits, proceedings,
claims or disputes pending, or to the best knowledge of any Borrower or Old USI,
threatened at law, in equity, in arbitration or before any Governmental
Authority, against New USI or any of its Subsidiaries or any of their respective
properties or assets which:
(a) purport to affect or pertain to this Agreement, any other
Loan any other Document, or any of the transactions contemplated hereby or
thereby; or
(b) would reasonably be expected to have a Material Adverse
Effect.
No injunction, writ, temporary restraining order or any order
of any nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery or performance of this
Agreement or any other Loan Document, or directing that any other transaction
provided for herein not be consummated as herein provided.
6.06 No Default. No Default or Event of Default exists or
would result from the incurring of any Obligations by any Borrower or Old USI.
Neither New USI nor any of its Subsidiaries is in default under or with respect
to any Contractual Obligation in any respect which, individually or together
with all such defaults, could reasonably be expected to have a Material Adverse
Effect.
6.07 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state law.
Each Plan which is intended to qualify under Section 401(a) of the Code (i) has
received a favorable determination letter from the Internal Revenue Service or
(ii) has been recently established and has not received such a determination
letter and such Plan complies with the requirements of Section 401(a) of the
Code; and to the best knowledge of any Borrower or Old USI nothing has occurred
which would cause the loss of such qualification or the revocation of such
determination letter.
(b) There are no pending or, to the best knowledge of any
Borrower or Old USI, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan which has resulted or could reasonably be expected to result
in a Material Adverse Effect.
67
(c) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Pension Plan or Multiemployer Plan.
(d) As of the date hereof, the aggregate Unfunded Pension
Liability for all Pension Plans that have an Unfunded Pension Liability does not
exceed $18,000,000.
(e) Neither New USI nor any ERISA Affiliate has incurred, nor
reasonably expects to incur, any liability under Title IV of ERISA with respect
to any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA).
(f) Neither New USI nor any ERISA Affiliate has incurred nor
reasonably expects to incur any liability (and no event has occurred which, with
the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan.
(g) Neither New USI nor any ERISA Affiliate has transferred
any Unfunded Pension Liability in excess of $5,000,000 to any Person or
otherwise engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
6.08 Use of Proceeds; Margin Regulations. The proceeds of the
Loans are intended to be and shall be used solely for the purposes set forth in
and permitted by Section 7.10, and are intended to be and shall be used in
compliance with Section 8.06. Neither New USI nor any of its Subsidiaries shall
purchase Margin Stock other than purchases made in compliance with Regulations
G, T, U and X of the Federal Reserve Board.
6.09 Title to Properties. New USI and each of its Subsidiaries
have good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of
their respective businesses, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. As of the Effective Date, the property of New USI and each of
its Subsidiaries is subject to no Liens, other than Permitted Liens.
6.10 Taxes. New USI and each of its Subsidiaries have filed
all federal and other material tax returns and reports required to be filed and
paid the tax thereon shown to be due, and have paid all federal and other
material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP. There is no proposed tax assessment against New USI or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
6.11 Financial Statements. All balance sheets, statements of
operations and other financial data which have been or shall hereafter be
furnished to the Agent and the Banks for the purposes of or in connection with
this Agreement or any transaction contemplated hereby do and will present
fairly, in all material respects, the financial condition of the Persons
involved as of the dates thereof and the results of their operations for the
period(s) covered thereby.
68
6.12 Securities Law, etc.; Compliance. All transactions
contemplated by this Agreement and the other Loan Documents comply in all
material respects with (x) Regulations G, T, U and X of the Federal Reserve
Board and (y) all other applicable laws and any rules and regulations
thereunder, except where the failure to comply, in the case of this clause (y),
could not reasonably be expected to have a Material Adverse Effect.
6.13 Governmental Regulation. Neither Old USI nor any Borrower
is an "investment company" within the meaning of the Investment Company Act of
1940 or a "holding company," or a "subsidiary company" of a "holding company,"
or an "affiliate" of a "holding company" or of a "subsidiary company" of a
holding company," within the meaning of the Public Utility Holding Company Act
of 1935.
6.14 Accuracy of Information. All factual information
(excluding, in any event, financial projections) heretofore or contemporaneously
herewith furnished by or on behalf of it in writing to the Agent or any Bank for
purposes of or in connection with this Agreement or any transaction contemplated
hereby, and all other such factual information hereafter furnished by or on
behalf of it to the Agent or any Bank will be, true and accurate in every
material respect on the date as of which such information is dated or certified
and not incomplete by omitting to state any material fact necessary to make such
information, in the light of the circumstances existing at the time such
information was delivered, not misleading.
6.15 Hazardous Materials. Except as disclosed on Schedule
6.15, neither New USI nor its Subsidiaries have caused or permitted any
Hazardous Material to be disposed of or otherwise released, to its best
knowledge, either from, on or under any property currently or formerly legally
or beneficially owned or operated by, or otherwise used by, New USI or any of
its Subsidiaries which has or is reasonably likely to have a Material Adverse
Effect. To its best knowledge, no such property has ever been used as a dump
site or storage site for any Hazardous Materials or otherwise contains or
contained Hazardous Materials which has or is reasonably likely to have a
Material Adverse Effect. The failure, if any, of New USI or its Subsidiaries, in
connection with their current and former properties or their businesses, to be
in compliance with any Environmental Law or to obtain any permit, certificate,
license, approval and other authorization under such Environmental Laws has not
had, nor is reasonably likely to have, a Material Adverse Effect. Neither New
USI nor its Subsidiaries have entered into, have agreed to or are subject to any
judgment, decree or order or other similar requirement of any Governmental
Authority under any Environmental Law, including without limitation, relating to
compliance or to investigation, cleanup, remediation or removal of Hazardous
Materials, which has or is reasonably likely to have a Material Adverse Effect.
Neither New USI nor its Subsidiaries have contractually assumed any liabilities
or obligations under any Environmental Law which have or are reasonably likely
to have a Material Adverse Effect. There are no facts or circumstances which
exist that could give rise to liabilities with respect to Hazardous Materials or
any Environmental Law, which have or are reasonably likely to have a Material
Adverse Effect.
6.16 Senior Notes. As of the Effective Date, the Senior Notes
have been duly authorized (except with respect to filings, registrations or
approvals that may be required under state blue sky securities laws in
connection with the sale of the Senior Notes), issued and delivered in
69
accordance with applicable law and the offering memorandum relating thereto, and
such offering memorandum, as of the date of its issue, does not contain any
untrue statement of a material fact nor omit to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
ARTICLE VII..
AFFIRMATIVE COVENANTS
The Borrowers and Old USI agree with the Agent and each Bank
that, until all Commitments and Letters of Credit have terminated and all
Obligations (other than indemnities for which no request for payment has been
made) have been paid and performed in full:
7.01 Financial Statements. Old USI and each Borrower shall
deliver to the Agent in form and detail satisfactory to the Agent and the
Majority Banks:
(a) as soon as available, but not later than 95 days after the
end of each fiscal year, a copy of the audited consolidated balance sheet of New
USI and its consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by the opinion of Ernst &
Young LLP or another nationally-recognized independent public accounting firm
which report shall state that such consolidated financial statements present
fairly, in all material respects, the financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with prior years
(except for changes agreed upon by the Borrowers and such auditors which are
disclosed and described in such statements). Such opinion shall not be qualified
or limited because of a restricted or limited examination by such accountant of
any material portion of the records of New USI or any of its Subsidiaries; and
(b) as soon as available, but not later than 50 days after the
end of each of the first three fiscal quarters of each fiscal year, a copy of
the unaudited consolidated balance sheet of New USI and its consolidated
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, shareholders' equity and cash flows for the period
commencing on the first day and ending on the last day of such quarter, and
certified by any Responsible Officer as being complete and correct and fairly
presenting in all material respects, in accordance with GAAP, the financial
position and the results of operations of New USI and its Subsidiaries.
7.02 Certificates; Other Information. Old USI and each
Borrower shall furnish to the Agent:
(a) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b) above, a Compliance Certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a Leverage Ratio Certificate duly
executed by a Responsible Officer of New USI;
70
(c) promptly after the same are sent, copies of all financial
statements and reports which New USI sends to its shareholders; and promptly
after the same are filed, copies of all financial statements and regular,
periodical or special reports which New USI may make to, or file with, the
Securities and Exchange Commission, other than filings on Form 11-K and S-8;
(d) promptly after the same are sent, copies of all financial
statements and reports which New USI or any of its Subsidiaries sends to the
holders of the Senior Notes (to the extent not theretofore delivered to the
Banks pursuant to this Agreement); and
(e) promptly, such additional business, financial and other
information with respect to New USI or any of its Subsidiaries as the Agent, at
the request of any Bank, may from time to time reasonably request.
7.03 Notices. New USI shall, upon any Responsible Officer of
New USI obtaining knowledge thereof, give notice (accompanied by a reasonably
detailed explanation with respect thereto) promptly to the Agent, the Issuing
Bank and each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any litigation, arbitration, or governmental investigation
or proceeding not previously disclosed by Old USI or the Borrowers to the Banks
which has been instituted or, to the knowledge of Old USI or the Borrowers, is
threatened against New USI or any of its Subsidiaries or to which any of their
respective properties is subject (i) which has a reasonable likelihood of
resulting in a Material Adverse Effect or (ii) relates to this Agreement, any
other Loan Document or any of the transactions contemplated hereby;
(c) any development which shall occur in any litigation,
arbitration, or governmental investigation or proceeding previously disclosed by
New USI to the Banks which has a reasonable likelihood of resulting in a
Material Adverse Effect; or
(d) any of the following events affecting New USI or any ERISA
Affiliate (but in no event more than ten days after such event), together with a
copy of any notice with respect to such event that may be required to be filed
with a Governmental Authority and any notice delivered by a Governmental
Authority to New USI or any ERISA Affiliate with respect to such event:
(i) an ERISA Event; or
(ii) if any of the representations and warranties in Section
6.07 ceases to be true and correct.
7.04 Maintenance of Corporate Existence, etc. New USI will
cause to be done at all times all things necessary to maintain and preserve the
corporate existence of New USI. New USI will continue to own and hold directly
or indirectly all of the outstanding shares of capital stock of Old USI and the
Company.
71
7.05 Foreign Qualification, etc. New USI will, and will cause
each of its Subsidiaries to, cause to be done at all times all things necessary
to maintain and preserve the rights and franchises of Old USI, each Borrower and
each Material Subsidiary to be duly qualified to do business and be in good
standing as a foreign corporation in each jurisdiction where the nature of its
business makes such qualification necessary and where the failure to maintain
and preserve or so qualify could reasonably be expected to have a Material
Adverse Effect.
7.06 Payment of Taxes, etc. New USI will, and will cause each
of its Subsidiaries to, pay and discharge, as the same may become due and
payable, all federal and material state and local taxes, assessments, and other
governmental charges or levies against or on any of its income, profits or
property, as well as material claims of any kind which, if unpaid, might become
a lien upon any one of its properties, and will pay (before they become
delinquent) all other material obligations and liabilities; provided, however,
that the foregoing shall not require New USI or any of its Subsidiaries to pay
or discharge any such tax, assessment, charge, levy, lien, obligation or
liability so long as it shall contest the validity thereof in good faith by
appropriate proceedings and shall set aside on its books adequate reserves in
accordance with accounting principles generally accepted in the country in which
it has its principal place of business.
7.07 Maintenance of Property; Insurance. New USI will, and
will cause each of its Subsidiaries to, keep all of its material property that
is useful and necessary in its business in good working order and condition
(except for ordinary wear and tear and any failures that could not reasonably be
expected to have a Material Adverse Effect) and will maintain, and cause each of
its Subsidiaries to maintain, such insurance as may be required by law and such
other insurance, to such extent and against such hazards and liabilities, as is
customarily maintained by companies similarly situated to New USI.
7.08 Compliance with Laws, etc. New USI will, and will cause
each of its Subsidiaries to, comply with the Requirements of Law of any
Governmental Authority, noncompliance with which could reasonably be expected to
have a Material Adverse Effect.
7.09 Books and Records. Old USI and each Borrower will keep
proper books and records reflecting all of their business affairs and
transactions in accordance with GAAP and New USI will cause each of its other
Subsidiaries to keep proper books and records reflecting all of their business
affairs and transactions. Old USI and each Borrower shall permit the Agent or,
after the occurrence and during the continuance of any Default under Section
7.01 or Event of Default, any Bank, or any of their respective representatives
or agents, upon reasonable notice and at reasonable times and intervals during
ordinary business hours (or at any time if an Event of Default has occurred and
is continuing), to visit all of their offices, discuss their financial matters
with their officers and, subject to the right of each Borrower's representatives
to be present, independent accountants (and hereby authorizes such independent
accountants to discuss their financial matters with the Agent, any Bank or its
representatives pursuant to the foregoing) and examine and make abstracts or
photocopies from any of their books or other corporate records, all at Old USI's
72
or the Borrowers' expense for any charges imposed by such accountants or for
making such abstracts or photocopies, but otherwise at the Agent's or such
Bank's expense.
7.10 Use of Proceeds. The Borrowers shall use the proceeds of
the Loans for working capital and general corporate requirements of New USI and
its Subsidiaries.
7.11 End of Fiscal Years; Fiscal Quarters. New USI will, for
financial reporting purposes, cause (i) its fiscal years to end on the Saturday
closest to the last day in September of each year and (ii) its fiscal quarters
to end in a manner consistent therewith (on a 52/53 week basis).
ARTICLE VIII.
NEGATIVE COVENANTS
The Borrowers and Old USI agree with the Agent and each Bank
that, until all Commitments and Letters of Credit have terminated and all
Obligations (other than indemnities for which no request for payment has been
made) have been paid and performed in full:
8.01 Limitation on Liens. New USI will not, and will not
permit any of its Subsidiaries to, create, incur, assume, or suffer to exist any
Lien upon any of its revenues, property (including fixed assets, inventory, real
property, intangible rights and stock) or other assets, whether now owned or
hereafter acquired, other than the following ("Permitted Liens"):
(a) Liens which were granted prior to the date hereof securing
Indebtedness or other obligations having an aggregate principal or face amount
not exceeding $5,000,000, and refinancings, renewals and extensions thereof to
the extent not encumbering additional property;
(b) Liens for taxes, assessments, or other governmental
charges or levies to the extent that payment thereof shall not at the time be
required to be made in accordance with the provisions of Section 7.06;
(c) Liens encumbering property of New USI or any of its
Subsidiaries of carriers, warehousemen, mechanics, materialmen and landlords
incurred in the ordinary course of business for sums not overdue or being
contested in good faith by appropriate proceedings and for which appropriate
reserves with respect thereto have been established and maintained on the
consolidated books of New USI in accordance with GAAP;
(d) Liens encumbering property of New USI or any of its
Subsidiaries of incurred in the ordinary course of business (x) in connection
with workers' compensation, unemployment insurance, or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases, and contracts (other than for borrowed money)
entered into in the ordinary course of business or (y) to secure obligations on
surety or appeal bonds so long as the obligations secured by Liens under this
clause (y) do not exceed $20,000,000;
73
(e) easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or interfere with the ordinary conduct of
the business of New USI or any of its Subsidiaries;
(f) judgment Liens securing amounts not in excess of (A)
$20,000,000 (i) in existence less than 30 days after the entry thereof, (ii)
with respect to which execution has been stayed or (iii) with respect to which
the appropriate insurance carrier has agreed in writing that there is coverage
by insurance or (B) $5,000,000;
(g) Liens securing documentary letters of credit; provided
such Liens attach only to the property or goods to which such letter of credit
relates;
(h) in addition to Liens referred to in clause (i) below,
purchase money security interests encumbering, or Liens otherwise encumbering at
the time of the acquisition thereof by New USI or any of its Subsidiaries (x)
real property and improvements thereto provided such security interests and
other Liens do not secure at any time amounts in excess of $25,000,000 in the
aggregate for New USI and all of its Subsidiaries combined and (y) equipment,
furniture, machinery or other assets hereafter acquired by New USI or any of its
Subsidiaries for normal business purposes, and refinancings, renewals and
extensions of such security interests and Liens;
(i) Liens on the assets of any Person hereafter acquired by
New USI or any of its Subsidiaries, provided that (i) such acquisition is
permitted by Section 8.03 and (ii) such Liens were not created in contemplation
of or do not arise as result of or otherwise in connection with such
acquisition;
(j) Liens securing the obligations of New USI and/or its
Subsidiaries in connection with letters of credit permitted by Section
8.04(f)(y);
(k) interests in leases under which New USI and/or any of its
Subsidiaries are lessors and such leases are otherwise not prohibited by the
terms of this Agreement; and
(l) Liens granted by New USI or any of its Subsidiaries after
the date hereof and not covered by clauses (a) through (j) above (including
Liens arising from Sale and Leaseback Transactions and Receivables Sales)
securing obligations ("Secured Obligations") which, when added to the aggregate
principal amount of Indebtedness incurred by New USI or any of its Subsidiaries
(not constituting Secured Obligations) and permitted pursuant to Section
8.04(j), shall not exceed in the aggregate, 10% of Consolidated Net Tangible
Assets.
8.02 Disposition of Assets. New USI will not, and will not
suffer or permit any of its Subsidiaries to, directly or indirectly, sell,
assign, lease, convey, transfer or otherwise dispose of (whether in one or a
series of transactions) any property (including accounts and notes receivable,
with or without recourse) or enter into any agreement to do any of the
foregoing, except:
74
(a) dispositions of assets not constituting Asset Sales;
(b) Asset Sales (other than Receivables Sales); and
(c) Receivables Sales provided that the aggregate Receivables
Sale Amount of all such Receivables Sales shall not exceed $100,000,000.
8.03 Consolidations, Merger, etc. New USI will not, and will
not permit any of its Subsidiaries to, wind up, liquidate or dissolve itself (or
suffer any thereof), consolidate or amalgamate with or merge into or with any
other corporation or any other Person, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division thereof) or
convey, sell, transfer, lease or otherwise dispose of all or substantially all
of the assets of any such Person or, in the case of New USI's Subsidiaries only,
stock in one transaction or a series of transactions, to any other Person or
Persons except:
(a) so long as no Event of Default or Default has occurred and
is continuing or would occur after giving effect thereto, any Subsidiary of New
USI may liquidate or dissolve voluntarily into, and may merge with and into, New
USI or any other Wholly-Owned Subsidiary of New USI;
(b) so long as no Event of Default or Default has occurred and
is continuing or would occur after giving effect thereto, the purchase or
acquisition by New USI or any Subsidiary of New USI after the Effective Date, of
all or substantially all of the assets or stock of any Person or any division
thereof if New USI is in pro forma compliance with all covenants hereunder both
before and after giving effect to such transaction;
(c) so long as no Event of Default or Default has occurred and
is continuing or would occur after giving effect thereto, any Subsidiary of New
USI may purchase and merge with any other Person permitted to be acquired
pursuant to paragraph (b) above and may be created and capitalized for such
purposes;
(d) so long as no Event of Default or Default has occurred and
is continuing or would occur after giving effect thereto, New USI may make asset
dispositions, as would otherwise be permitted under Section 8.02;
(e) so long as no Event of Default or Default has occurred and
is continuing or would occur after giving effect thereto, any Subsidiary of New
USI may be liquidated or dissolved; and
(f) the Mergers shall be permitted.
8.04 Limitation on Indebtedness. New USI will not, and will
not suffer or permit any of its Subsidiaries to, create, incur, assume, suffer
to exist, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
75
(a) Indebtedness existing on the Effective Date and described
on Schedule 8.04(a), and in each case, refinancings or renewals thereof;
(b) Indebtedness incurred pursuant to any Loan Document;
(c) Indebtedness among New USI and its Subsidiaries;
(d) Indebtedness of New USI and its Subsidiaries secured by
Liens permitted by Section 8.01(h) and 8.01(i);
(e) unsecured Indebtedness of the Borrowers at any time
outstanding;
(f) letters of credit and reimbursement obligations of New USI
and/or its Subsidiaries under (x) documentary letters of credit and (y) letters
of credit, so long as the sum of undrawn face amounts and reimbursement
obligations under this clause (y) shall not exceed $75,000,000;
(g) Indebtedness (i) of each of New USI and the Company under
the Senior Notes in an aggregate principal amount of $125,000,000 and (ii)
constituting a guaranty by Old USI of the Senior Notes on a basis that is pari
passu with the obligations owed by Old USI to the Banks, in each case, any
refinancings or renewals thereof;
(h) Indebtedness arising under Interest Rate Protection
Agreements entered into by New USI or any of its Subsidiaries relating to
Indebtedness permitted hereunder so long as the notional amount thereof does not
exceed the principal amount of such Indebtedness;
(i) unsecured guaranties by New USI or any of its Subsidiaries
of any Indebtedness of its Subsidiaries permitted to be outstanding hereunder;
(j) a promissory note in the amount of $20,000,000 to be
issued by ▇▇▇▇ to one of its Subsidiaries in connection with the confirmation of
the plan of reorganization of United States Brass Corporation; and
(k) Indebtedness of the Subsidiaries of New USI not otherwise
permitted by this Section 8.04, in an aggregate amount not to exceed, when added
to the principal amount of obligations secured by Liens securing Secured
Obligations and permitted pursuant to Section 8.01(l), 10% of Consolidated Net
Tangible Assets at such time.
No provision of the foregoing shall permit any Subsidiary of
New USI (other than Old USI and the Company) to guaranty any amounts under or in
connection with the Senior Notes.
8.05 Transactions with Affiliates. New USI will not, and will
not permit any of its Subsidiaries to, enter into, or cause, suffer, or permit
to exist:
(a) any arrangement or contract with any of its Affiliates
(other than New USI or any Subsidiary of New USI, as the case may be), of a
nature customarily entered into by Persons which are Affiliates of each other
(including management or similar contracts or arrangements relating to the
76
allocation of revenues, taxes, and expenses or otherwise) requiring any payments
to be made by New USI or any of its Subsidiaries to any such Affiliate unless
such arrangement or contract is fair and equitable to New USI or such
Subsidiary; or
(b) any other transaction, arrangement, or contract with any
of its Affiliates (other than New USI or any of its Subsidiaries) which would
not be entered into by a prudent Person in the position of New USI or such
Subsidiary with, or which is on terms which are less favorable than are
obtainable from, any Person which is not one of its Affiliates.
8.06 Use of Credits; Compliance With Margin Regulations. New
USI will not, and will not suffer or permit any of its Subsidiaries to, use any
portion of the Loan proceeds or any Letter of Credit, directly or indirectly, to
purchase or carry Margin Stock other than in compliance with Regulations T, U
and X of the Federal Reserve Board. At no time shall the value of the Margin
Stock owned by New USI and its Subsidiaries or the Company and its Subsidiaries
(as determined in accordance with Regulation U of the Federal Reserve Board), as
the case may be, exceed 25% of the value (as determined in accordance with
Section 221.2(g)(2) of Regulation U of the Federal Reserve Board) of the assets
of New USI and its Subsidiaries or the Company and its Subsidiaries, as the case
may be.
8.07 Preferred Stock. New USI will not, and will not permit
any of its Subsidiaries to, issue any preferred stock (other than (i) Qualified
Preferred Stock and (ii) preferred stock issued to New USI or any of its
Wholly-Owned Subsidiaries).
8.08 Demerger Transaction Documents. a (a) New USI will not,
and will not permit any of its Subsidiaries to (a) amend, modify, supplement,
waive or otherwise modify any provision of, the Demerger Transaction Documents,
or (b) take or fail to take any action (except as required by the terms thereof)
under the Demerger Transaction Documents, that in the case of either (a) or (b)
could reasonably be expected to have a Material Adverse Effect.
(b) New USI will not, and will not permit any of its
Subsidiaries to, make any payment contemplated by Section VIII of the
Indemnification Agreement relating to the Subscription Agreement at any time
that such payment would be prohibited by the terms of such Section VIII.
8.09 Environmental Liabilities. New USI will not and will not
permit any of its Subsidiaries to violate any Environmental Law to an extent
sufficient to give rise to a Material Adverse Effect; and, without limiting the
foregoing, New USI will not, and will not permit any Person to, dispose of any
Hazardous Material into or onto, or (except in accordance with applicable law)
from, any real property owned, operated or otherwise used by New USI or any of
its Subsidiaries nor allow any Lien imposed pursuant to any Environmental Law to
be imposed or to remain on such real property, any of which events are
reasonably likely to have a Material Adverse Effect, except as contested in
reasonable good faith by appropriate proceedings and the pendency of such
proceedings will not have a Material Adverse Effect and except and unless
adequate reserves have been established and are being maintained on its books in
accordance with GAAP.
77
8.10 Financial Covenants.
(a) Consolidated Leverage Ratio. New USI shall not permit its
Consolidated Leverage Ratio as determined for any Measurement Period to be
greater than 3.5:1.0.
(b) Maximum Total Funded Debt. New USI will not permit its
ratio of Total Funded Debt to Capital to exceed (A) at any time prior to or on
December 31, 1997, 0.65:1.00 or (B) at any time on or after January 1, 1998,
0.60:1.00.
8.11 Special Covenants.
(a) Old USI shall not take, or fail to take, any action that
would result in a breach of, or constitute non-compliance with, any of the
representations and undertakings made by ▇▇▇▇▇▇ in that certain letter of
February 23, 1995 from ▇▇▇▇▇▇ to the United Kingdom Inland Revenue.
(b) Old USI shall not, directly or indirectly, take any action
(or fail to take any action) which would cause a loss of its dual tax residency
status under the laws of the United Kingdom and of the United States that would
reasonably be expected to have a Material Adverse Effect.
(c) Old USI shall engage in no business activities and shall
have no material assets or liabilities (other than debt permitted to be incurred
by Old USI pursuant to Section 8.04), other than (a) the management of its
affairs and, in its capacity as a stockholder thereof, the affairs of its
Subsidiaries, including those activities (i) relating to Old USI's status as a
reporting company under the Securities Exchange Act of 1934 and (ii) relating to
the requirements of clauses (a) and (b) above, (b) its ownership of the capital
stock of its Subsidiaries, (c) its liabilities pursuant to the Loan Documents
and (d) its rights and obligations pursuant to the Demerger Transaction
Documents.
ARTICLE IX.
EVENTS OF DEFAULT
9.01 Event of Default. Any of the following shall constitute
an "Event of Default":
(a) Non-Payment. Any Borrower fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or any amount of
any Letter of Credit Obligation, or (ii) within five days after the same shall
become due, any interest, fee or any other amount payable hereunder; or
(b) Representation or Warranty. Any representation or warranty
by New USI or any of its Subsidiaries made or deemed made herein or in any other
Loan Document, or which is contained in any certificate, document or financial
or other statement by New USI, any of its Subsidiaries or their respective
78
Responsible Officers, furnished at any time under this Agreement or in or under
any other Loan Document, shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) Specific Defaults. Any Borrower or Old USI fails to
perform or observe any term, covenant or agreement contained in Sections
7.03(a), 7.10, 7.11 or Article VIII; or
(d) Other Defaults. New USI or any of its Subsidiaries fails
to perform or observe any other term or covenant contained in this Agreement or
any other Loan Document, and such default shall continue unremedied for a period
of 30 days after the date upon which written notice thereof is given to the
Borrowers by the Agent or any Bank; or
(e) Cross-Default. New USI or any of its Subsidiaries (i)
fails to make any payment in respect of any Indebtedness having an aggregate
principal amount of $20,000,000 or more when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) and such failure
continues after the applicable grace or notice period, if any, specified in the
document relating thereto on the date of such failure; or (ii) fails to perform
or observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness, and such failure continues after the applicable grace or notice
period, if any, specified in the document relating thereto on the date of such
failure if the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to
be declared to be due and payable prior to its stated maturity; or
(f) Insolvency; Voluntary Proceedings. New USI or any of its
Material Subsidiaries (i) generally fails to pay its debts as they become due;
(ii) commences any Insolvency Proceeding with respect to itself; or (iii) takes
any action to effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against New USI or any of its Material
Subsidiaries, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of New USI's or any of
its Material Subsidiaries' properties, and any such proceeding or petition shall
not be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) New USI or any of its Material
Subsidiaries admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; or (iii) New USI or any of its
Material Subsidiaries acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent therefor),
or other similar Person for itself or a substantial portion of its property or
business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of New USI or an ERISA Affiliate under Title IV
of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
79
amount in excess of $10,000,000; (ii) the commencement or increase of
contributions to, or the adoption of or the amendment of a Pension Plan by New
USI or an ERISA Affiliate which has resulted or could reasonably be expected to
result in an increase in Unfunded Pension Liability among all Pension Plans with
Unfunded Pension Liabilities in an aggregate amount in excess of $30,000,000;
(iii) any of the representations and warranties contained in Section 6.07 shall
cease to be true and correct in any material respect and which cessation has
resulted or could reasonably be expected to result in a Material Adverse Effect;
or (iv) New USI or an ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan, which has resulted or could reasonably be expected to result in a Material
Adverse Effect; or
(i) Judgments. One or more non-interlocutory judgments, orders
or decrees shall be entered against New USI or any of its Subsidiaries involving
in the aggregate a liability (not covered by independent third-party insurance)
as to any single or related series of transactions, incidents or conditions, of
$20,000,000 or more, and the same shall remain unsatisfied, unvacated and
unstayed pending appeal for a period of 30 days after the entry thereof; or
(j) Change of Control. Any Change of Control shall occur; or
(k) Guaranty. Any provision of Article X of this Agreement
shall for any reason cease to be valid and binding on or enforceable against Old
USI, any Borrower or any other Guarantor Party or Old USI, any Borrower or any
Guarantor Party shall so state in writing or bring an action to limit its
obligations or liabilities thereunder; or
(l) Tax Status.
(i) Old USI or any of the other Subsidiaries of New USI shall
incur a liability to ▇▇▇▇▇▇ of the type referred to in Section VIII of the
Indemnification Agreement relating to the Subscription Agreement; or
(ii) there shall be a final, nonappealable determination by
the applicable Governmental Authority that Old USI has failed to maintain its
dual tax residency in the United States and the United Kingdom that would
reasonably be expected to have a Material Adverse Effect.
9.02 Remedies. If any Event of Default occurs and is
continuing, the Agent shall, at the request of, or may, with the consent of, the
Majority Banks,
(a) declare the Commitment of each Bank to make Committed
Loans and the obligation of any Multicurrency Bank to make Multicurrency Loans
and any obligation of the Issuing Bank to issue Letters of Credit to be
terminated, whereupon such Commitments and obligation shall forthwith be
terminated;
(b) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
80
payable hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by each Borrower and Old USI;
(c) demand that the Borrowers Cash Collateralize Letter of
Credit Obligations to the extent of outstanding and wholly or partially undrawn
Letters of Credit, whereupon the Borrowers shall so Cash Collateralize;
(d) exercise on behalf of itself, the Issuing Bank and the
Banks all rights and remedies available to it and the Banks under the Loan
Documents or applicable law; and
(e) apply any cash collateral as provided in Section 3.07 to
the payment of outstanding Obligations;
provided, however, that upon the occurrence of any event
specified above in paragraph (f) or (g) of Section 9.01 with respect to any
Borrower (in the case of clause (i) of paragraph (g) upon the expiration of the
60-day period mentioned therein), the obligation of each Bank to make Loans and
any obligation of the Issuing Bank to issue Letters of Credit shall
automatically terminate, and all reimbursement obligations under Letters of
Credit and the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable
without further act or notice by the Agent, the Issuing Bank or any Bank, which
are hereby expressly waived by each Borrower and Old USI.
9.03 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive of
any other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or hereafter
arising.
81
ARTICLE X.
THE GUARANTY
10.01 Guaranty from the Guarantor Parties.
(a) In order to induce the Banks to make Loans to the
Borrowers under this Agreement and to induce the Issuing Bank to issue Letters
of Credit, each Guarantor Party hereby unconditionally and irrevocably
guarantees the prompt payment and performance in full by its respective
Guaranteed Party when due (whether at stated maturity, by acceleration or
otherwise) of all Guaranteed Obligations of such Guaranteed Party. The
obligations of each Guarantor Party hereunder are those of a primary obligor,
and not merely a surety, and are independent of the Obligations of the
Guaranteed Party. A separate action or actions may be brought against a
Guarantor Party whether or not an action is brought against its respective
Guaranteed Party, any other guarantor or other obligor in respect of the
Guaranteed Obligations or whether its respective Guaranteed Party, any other
guarantor or any other obligor in respect of the Guaranteed Obligations is
joined in any such action or actions. Each Guaranteed Party waives, to the
extent permitted by applicable law, the benefit of any statute of limitation
affecting its liability hereunder and agrees that its liability hereunder shall
not be subject to any right of set-off, counterclaim or recoupment (each of
which rights is hereby waived to the extent permitted by applicable law).
(b) Each Guarantor Party guarantees that the obligations
guaranteed by it hereby will be paid and performed strictly in accordance with
the terms of this Agreement and the other Loan Documents regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Agent, the Issuing Bank or the Banks with
respect thereto. To the extent permitted by law, the liability of each Guarantor
Party under this guaranty shall be absolute and unconditional irrespective of,
and each Guarantor Party hereby irrevocably waives (to the extent permitted by
applicable law) any defenses it may now or hereafter have in any way relating
to, any and all of the following:
(i) any lack of genuineness, validity, legality or
enforceability against any respective Guaranteed Party or any other guarantor of
this Agreement, any other Loan Document or any document, agreement or instrument
relating hereto or any assignment or transfer of this Agreement or any other
Loan Document or any defense that any respective Guaranteed Party may have with
respect to its liability hereunder or thereunder;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any waiver,
indulgence, compromise, renewal, extension, amendment, modification of, or
addition, consent, supplement to, or consent to departure from, or any other
action or inaction under or in respect of, this Agreement, any other Loan
Document or any document, instrument or agreement relating to the Guaranteed
Obligations or any other instrument or agreement referred to herein or any
assignment or transfer of this Agreement;
(iii) any release or partial release of any other guarantor or
other obligor in respect of the Guaranteed Obligations;
82
(iv) any exchange, release or non-perfection of any collateral
for all or any of the Guaranteed Obligations, or any release, or amendment or
waiver of, or consent to departure from, any guaranty or security, for any or
all of the Guaranteed Obligations;
(v) any furnishing of any additional security for any of the
Guaranteed Obligations;
(vi) the liquidation, bankruptcy, insolvency or reorganization
of any Guaranteed Party, any other guarantor or other obligor in respect of the
Guaranteed Obligations or any action taken with respect to this guaranty or
otherwise by any trustee or receiver, or by any court, in any such proceeding;
(vii) any modification or termination of any intercreditor or
subordination agreement pursuant to which the claims of other creditors of any
Guaranteed Party or any guarantor are subordinated to those of the Banks, the
Issuing Bank or the Agent; or
(viii) any other circumstance which might otherwise constitute
a defense available to, or a legal or equitable discharge of, any Guaranteed
Party or any Guarantor Party.
(c) This guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment or performance of the
Guaranteed Obligations, or any part thereof, is, upon the insolvency, bankruptcy
or reorganization of any Guaranteed Party or otherwise pursuant to applicable
law, rescinded or reduced in amount or must otherwise be restored or returned by
any of the Agent, the Issuing Bank or any Bank, all as though such payment or
performance had not been made.
(d) If an event permitting the acceleration of any of the
Guaranteed Obligations shall at any time have occurred and be continuing and
such acceleration shall at such time be prevented by reason of the pendency
against any Borrower of a case or proceeding under any bankruptcy or insolvency
law, the relevant Guarantor Party agrees that, for purposes of this guaranty and
its obligations hereunder, the Guaranteed Obligations shall be deemed to have
been accelerated and such Guarantor Party shall forthwith pay such Guaranteed
Obligations (including interest which but for the filing of a petition in
bankruptcy with respect to such Borrower would accrue on such Obligations), and
the other obligations hereunder, forthwith upon demand.
(e) Each Guarantor Party hereby waives (i) promptness,
diligence, presentment, notice of nonperformance, protest or dishonor, notice of
acceptance and any and all other notices with respect to any of the Guaranteed
Obligations or this Agreement or any other Loan Document, and (ii) to the extent
permitted by applicable law, any right to require that any Agent, the Issuing
Bank or any Bank protect, secure, perfect or insure any Lien in or any Lien on
any property subject thereto or exhaust any right or pursue any remedy or take
any action against any Guaranteed Party, any other guarantor or any other Person
or any collateral or security or to any balance of any deposit accounts or
credit on the books of the Agent, the Issuing Bank or any Bank in favor of such
Guaranteed Party.
83
(f) Each Guarantor Party expressly waives until the Guaranteed
Obligations under this Agreement are paid in full any and all rights of
subrogation, reimbursement, contribution and indemnity (contractual, statutory
or otherwise), including any claim or right of subrogation under the Bankruptcy
Code or any successor statute, arising from the existence or performance of this
guaranty and each Guarantor Party irrevocably waives until the Guaranteed
Obligations under this Agreement are paid in full any right to enforce any
remedy which the Agent, the Issuing Bank or the Banks now have or may hereafter
have against any Guaranteed Party and waives, to the extent permitted by law,
until the Guaranteed Obligations under this Agreement are paid in full any
benefit of, and any right to participate in, any security now or hereafter held
by the Agent, the Issuing Bank or any Bank.
(g) If, in the exercise of any of its rights and remedies, the
Agent or any Bank shall forfeit any of its rights or remedies, including its
right to enter a deficiency judgment against any Guaranteed Party or any other
Person, whether because of any applicable laws pertaining to "election of
remedies" or the like, each Guarantor Party hereby consents to such action and
waives any claim based upon such action (to the extent permitted by applicable
law). Any election of remedies which results in the denial or impairment of the
right of the Agent, the Issuing Bank or any Bank to seek a deficiency judgment
against any Guaranteed Party shall not impair the relevant Guarantor Party's
obligation to pay the full amount of the Guaranteed Obligations.
(h) This guaranty is a continuing guaranty and shall (i)
remain in full force and effect until payment in full of the Guaranteed
Obligations and all other amounts payable under this guaranty and the
termination of the Commitments; (ii) be binding upon each Guarantor, its
successors and assigns; and (iii) inure, together with the rights and remedies
hereunder, to the benefit of the Agent, the Issuing Bank, the Banks and their
respective successors, transferees and assigns. Without limiting the generality
of the foregoing clause (iii), any Bank may, subject to the terms of this
Agreement, assign or otherwise transfer its rights and obligations under this
Agreement to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect hereof granted to such Bank pursuant to
this guaranty or otherwise, all as provided in, and to the extent set forth in,
this Agreement.
(i) Any obligations of any Guaranteed Party to its respective
Guarantor Party, now or hereafter existing, are hereby subordinated to the
Guaranteed Obligations. Such obligations of such Guaranteed Party to its
respective Guarantor Party, if the Majority Banks so request, shall be enforced
and amounts recovered shall be received by such Guarantor Party as trustee for
the Banks and the proceeds thereof shall be paid over to the Banks on account of
the Guaranteed Obligations, but without reducing or affecting in any manner the
liability of such Guarantor Party under the provisions of this guaranty.
(j) Upon failure of the Guaranteed Party to pay any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration or otherwise, the respective Guarantor Party hereby agrees
immediately on demand by any of the Banks or the Agent to pay or cause to be
paid in accordance with the terms hereof an amount equal to the full unpaid
amount of the Guaranteed Obligations then due in Dollars.
84
(k) All payments by a Guarantor Party hereunder shall be made
free and clear of, and without deduction or withholding for or on account of,
any Taxes, unless such deduction or withholding is required by law. If a
Guarantor Party shall be required by law to make any such deduction or
withholding, then such Guarantor Party shall pay such additional amounts as may
be necessary in order that the net amount received by the applicable Bank, the
Issuing Bank or the Agent, as the case may be, after all deductions and
withholdings, shall be equal to the full amount that such Person would have
received, after all deductions and withholdings, had the respective Guaranteed
Party discharged its obligations (including its tax gross-up obligations)
pursuant to Section 4.01.
(l) Any amounts deducted or withheld by a Guarantor Party for
or on account of Taxes shall be paid over to the government or taxing authority
imposing such Taxes on a timely basis, and such Guarantor Party shall provide
the applicable Bank, the Issuing Bank or the Agent, as the case may be, as soon
as practicable with such tax receipts or other official documentation (and such
other certificates, receipts and other documents as may reasonably be requested
by such Person) with respect to the payment of such Taxes as may be available.
ARTICLE XI.
THE AGENT, THE ISSUING BANK AND THE ARRANGER
11.01 Appointment and Authorization.
(a) Each of the Banks, the Issuing Bank and the Swingline Bank
hereby irrevocably appoints, designates and authorizes the Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank, the Issuing Bank or the
Swingline Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent.
(b) The Issuing Bank shall have all of the benefits and
immunities (i) provided to the Agent in this Article XI with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with Letters of
Credit issued by it or proposed to be issued by it and the Letter of Credit
Applications pertaining to the Letters of Credit as fully as if the term
"Agent", as used in this Article XI, included the Issuing Bank with respect to
such acts or omissions, and (ii) as additionally provided in this Agreement with
respect to the Issuing Bank.
11.02 Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
85
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
11.03 Liability of Agent. None of the Agent, its Affiliates or
any of their officers, directors, employees, agents or attorneys-in-fact
(collectively, the "Agent-Related Persons") shall (a) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement or any other Loan Document (except for their own gross negligence or
willful misconduct), or (b) be responsible in any manner to any of the Banks for
any recital, statement, representation or warranty made by New USI, Old USI, the
Company or any Subsidiary or Affiliate thereof, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of any Borrower, Old USI or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Borrower, Old USI or any of their respective Subsidiaries or
Affiliates.
11.04 Reliance by Agent.
(a) The Banks agree that the Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Borrowers or Old USI), independent accountants and other experts selected
by the Agent. The Banks agree that the Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority Banks
or, as required by Section 12.01, all the Banks as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Majority
Banks or, as required by Section 12.01 all the Banks, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all of the
Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01 as it relates to the initial Borrowing and issuances
of Letters of Credit on the Effective Date, each Bank that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter either sent by the Agent to such
86
Bank for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to such Bank,
unless an officer of the Agent responsible for the transactions contemplated by
the Loan Documents shall have received notice from such Bank prior to the
initial Borrowing and issuances of Letters of Credit on the Effective Date
specifying in reasonable detail its objection thereto and either such objection
shall not have been withdrawn by notice to the Agent to that effect or such Bank
shall not have made available to the Agent such Bank's ratable portion of such
Borrowing.
11.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to the Agent for the account of the Banks or the Issuing Bank, unless
the Agent shall have received written notice from a Bank or the Borrowers
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give notice thereof to the Banks and the
Issuing Bank. The Agent shall take such action with respect to such Default or
Event of Default as shall be requested by the Majority Banks in accordance with
Article IX; provided, however, that unless and until the Agent shall have
received any such request, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of the
Banks.
11.06 Credit Decision. Each Bank expressly acknowledges that
none of the Agent-Related Persons has made any representation or warranty to it
and that no act by the Agent hereinafter taken, including any review of the
affairs of the Borrowers, Old USI and their Subsidiaries shall be deemed to
constitute any representation or warranty by the Agent to any Bank. Each Bank
represents to the Agent that it has, independently and without reliance upon the
Agent and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrowers, Old USI and their Subsidiaries, and all applicable bank regulatory
laws relating to the transactions contemplated thereby, and made its own
decision to enter into this Agreement and extend credit to the Borrowers
hereunder. Each Bank also represents that it will, independently and without
reliance upon the Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrowers, Old USI and their
Subsidiaries. Except for notices, reports and other documents expressly herein
required to be furnished to the Banks by the Agent, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrowers, Old USI and their Subsidiaries
which may come into the possession of any of the Agent-Related Persons.
11.07 Indemnification. Whether or not the transactions
contemplated hereby shall be consummated, the Banks shall indemnify, upon
demand, each of the Agent- Related Persons (to the extent not reimbursed by or
on behalf of the Borrowers and without limiting the obligation of the Borrowers
to do so), ratably from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
87
disbursements of any kind whatsoever which may at any time (including at any
time following the expiration of the Letters of Credit and the repayment of the
Loans and the termination or resignation of the Agent) be imposed on, incurred
by or asserted against any such Person in any way relating to or arising out of
this Agreement, any other Loan Document or any document contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by any such Person under or in connection with
any of the foregoing; provided, however, that no Bank shall be liable for the
payment to any of the Agent-Related Persons of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from such Person's gross negligence
or willful misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein to the
extent that the Agent is not reimbursed for such expenses by or on behalf of the
Borrowers. Without limiting the generality of the foregoing, if the Internal
Revenue Service or any other Governmental Authority of the United States or
other jurisdiction asserts a claim that the Agent did not properly withhold tax
from amounts paid to or for the account of any Bank (because the appropriate
form was not delivered, was not properly executed, or because such Bank failed
to notify the Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Bank shall indemnify the Agent fully for all amounts paid as a result
thereof, directly or indirectly, by the Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any jurisdiction on
the amounts payable to the Agent under this Section 11.07, together with all
costs and expenses (including Attorney Costs). The obligation of the Banks in
this Section 11.07 shall survive the payment of all Obligations hereunder.
11.08 Agent in Individual Capacity. Bank of America and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory or other business with the Borrowers, Old USI
and their Subsidiaries and Affiliates as though Bank of America were not the
Agent or the Issuing Bank hereunder and without notice to or consent of the
Banks. With respect to its Loans and participation in Letters of Credit, Bank of
America shall have the same rights and powers under this Agreement and the other
Loan Documents as any other Bank and may exercise the same as though it were not
the Agent or the Issuing Bank, and the terms "Bank" and "Banks" shall include
Bank of America in its individual capacity.
11.09 Successor Agent. The Agent may resign as Agent upon 30
days' notice to the Banks and the Borrowers. If the Agent shall resign as Agent
under this Agreement, the Majority Banks shall appoint from among the Banks a
successor agent for the Banks which successor agent shall be subject to the
approval of the Borrowers if no Event of Default has occurred and is continuing,
such approval not to be unreasonably withheld or delayed. If no successor agent
is appointed prior to the effective date of the resignation of the Agent, the
Agent may appoint, after consulting with the Banks and subject to the approval
88
of the Borrowers if no Event of Default has occurred and is continuing, such
approval not to be unreasonably withheld or delayed, a successor agent from
among the Banks or any Bank Affiliate. Any successor Agent appointed under this
Section 11.09 shall be a commercial bank organized under the laws of the United
States or any State thereof, and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XI and Sections 12.04 and 12.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Agent hereunder until such
time, if any, as the Majority Banks appoint a successor agent as provided for
above.
11.10 The Arranger. The Arranger, in such capacity, shall have
no duties or responsibilities, and shall incur no obligations or liabilities,
under this Agreement. Each Bank acknowledges that it has not relied, and will
not rely, on the Arranger in deciding to enter into this Agreement.
11.11 Co-Agents; Managing Agents. None of the Banks identified
on the facing page or signature pages of this Agreement as a "co-agent" or
"managing agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Banks as such. Each Bank acknowledges that it has not relied, and will not rely,
on any of the Banks so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XII.
MISCELLANEOUS
12.01 Amendments and Waivers. a (a) No amendment or waiver
of, any provision of this Agreement or any other Loan Document and no consent
with respect to any departure by any Borrower or Old USI therefrom, shall be
effective unless the same shall be in writing and signed by Old USI, each
Borrower and the Majority Banks and acknowledged by the Agent, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no such
waiver, amendment or consent shall, unless in writing and signed by all the
Banks affected thereby and acknowledged by the Agent, do any of the following:
(i) increase or extend the Commitment of such Bank (or
reinstate any Commitment terminated pursuant to Section 9.02(a)) (except as
provided in Section 12.07);
89
(ii) postpone or delay any Scheduled Commitment Reduction Date
or any date for any payment of interest or fees due to the Banks (or any of
them) hereunder or under any other Loan Document or extend the Termination Date
(pursuant to Section 2.19 or otherwise);
(iii) reduce the principal of, or the rate of interest
specified herein on, any Loan or Letter of Credit Borrowing (other than with
respect to post-default rates), or of any fees or other amounts payable
hereunder or under any other Loan Document or reduce the Applicable Margin
provided for herein;
(iv) reduce the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which shall be required for the
Banks or any of them to take any action hereunder;
(v) amend this Section 12.01, the definition of the term
"Majority Banks" or any provision of this Agreement expressly requiring the
consent of all the Banks in order to take or refrain from taking any action; or
(vi) release the guaranty of any Guarantor Party under its
guaranty pursuant to Article X, except in accordance with the express provisions
thereof;
and, provided further, that (A) no amendment, waiver or
consent shall, unless in writing and signed by the Issuing Bank in addition to
the Majority Banks or all the Banks, as the case may be, affect the rights or
duties of the Issuing Bank under this Agreement or any Letter of Credit Related
Document, (B) no amendment, waiver or consent shall, unless in writing and
signed by the Swingline Bank in addition to the Majority Banks or all the Banks,
as the case may be, affect the rights and duties of the Swingline Bank under
this Agreement, (C) no amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Majority Banks or all the Banks, as the
case may be, affect the rights or duties of the Agent under this Agreement or
any other Loan Document or (D) no amendment, waiver or consent shall, unless in
writing and signed by the Majority Multicurrency Banks or all the Multicurrency
Banks, as the case may be, affect the rights or duties of the Multicurrency
Banks under this Agreement.
(b) If, in connection with any proposed change, waiver,
discharge or any termination to any of the provisions of this Agreement as
contemplated by clauses (ii) through (vi), inclusive, of the first proviso to
Section 12.01(a), the consent of the Majority Banks is obtained but the consent
of one or more other Banks whose consent is required is not obtained, then the
Borrowers shall have the right, so long as all non-consenting Banks whose
individual consent is required are treated the same, to replace each such
non-consenting Bank or Banks with one or more Replacement Banks pursuant to
Section 4.08(b) so long as at such time of such replacement, each such
Replacement Bank consents to the proposed change, waiver, discharge or
termination.
12.02 Notices.
(a) All notices, requests and other communications provided
for hereunder shall be in writing (including, unless the context expressly
otherwise provides, facsimile transmission) and mailed, transmitted by facsimile
90
or delivered, (A) if to the Borrowers, Old USI, the Agent, the Issuing Bank or
the Swingline Bank, to the address or facsimile number specified for notices on
the applicable signature page hereof; (B) if to any Bank, to the notice address
of such Bank set forth on Schedule 1.01(a); or (C) as directed to the Borrowers
or the Agent, to such other address as shall be designated by such party in a
written notice to the other parties, and as directed to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrowers and the Agent.
(b) All such notices, requests and communications shall be
effective when delivered or transmitted by facsimile machine, respectively,
provided that any matter transmitted by the Borrowers by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the number
specified on the applicable signature page hereof or on Schedule 1.01(a), and
(ii) shall be followed promptly by a hard copy original thereof; except that
notices to the Agent shall not be effective until actually received by the
Agent, notices to the Swingline Bank pursuant to Section 2.03 shall not be
effective until received by the Swingline Bank, and notices pursuant to Article
III to the Issuing Bank shall not be effective until actually received by the
Issuing Bank.
(c) The Borrowers acknowledge and agree that any agreement of
the Agent, the Issuing Bank, the Swingline Bank and the Banks at Articles II and
III herein to receive certain notices by telephone and facsimile is solely for
the convenience and at the request of the Borrowers. The Agent, the Issuing
Bank, the Swingline Bank and the Banks shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the relevant
Borrower to give such notice and the Agent, the Issuing Bank, the Swingline Bank
and the Banks shall not have any liability to such Borrower or any other Person
on account of any action taken or not taken by the Agent, the Issuing Bank, the
Swingline Bank or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of the Borrowers to repay the Loans and drawings under
Letters of Credit shall not be affected in any way or to any extent by any
failure by the Agent, the Issuing Bank, the Swingline Bank and the Banks to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Agent, the Issuing Bank, the Swingline Bank and the Banks of a
confirmation which is at variance with the terms understood by the Agent, the
Issuing Bank, the Swingline Bank or the Banks to be contained in the telephonic
or facsimile notice.
12.03 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Agent, the Issuing Bank, the
Swingline Bank or any Bank, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
12.04 Costs and Expenses. The Borrowers shall, whether or not
the transactions contemplated hereby shall be consummated:
(a) pay or reimburse on demand for all reasonable costs and
expenses incurred by the Agent, in connection with the development, preparation,
91
delivery, administration, syndication of the Commitments under and execution of,
and any amendment, supplement, waiver or modification to (in each case, whether
or not consummated), this Agreement, any other Loan Document and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including the reasonable
Attorney Costs incurred by the Agent with respect thereto;
(b) pay or reimburse each Bank, the Issuing Bank and the Agent
on demand for all reasonable costs and expenses incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies (including in connection with any "workout" or restructuring regarding
the Loans, and including in any Insolvency Proceeding) under this Agreement
(including the guaranty contained in Article X), any other Loan Document, and
any such other documents, including Attorney Costs or the cost of any
consultants incurred by the Agent and any Bank; and
(c) pay or reimburse the Agent and the Issuing Bank on demand
for all appraisal (including, without duplication, the allocated cost of
internal appraisal services), audit, environmental inspection and review
(including, without duplication, the allocated cost of such internal services),
search and filing costs, fees and expenses, incurred or sustained by the Agent
in connection with the matters referred to under paragraphs (a) and (b) of this
Section 12.04.
12.05 Indemnity. Whether or not the transactions contemplated
hereby shall be consummated, the Borrowers shall pay, indemnify, and hold each
Bank, the Issuing Bank, the Swingline Bank, the Agent and each of their
respective officers, directors, employees, counsel, agents and attorneys-in-fact
(each, an "Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses or disbursements (including Attorney Costs) of any kind
or nature whatsoever with respect to (a) any investigation, litigation or
proceeding (including any Insolvency Proceeding) related to this Agreement or
the Loan Documents or the Loans or the Letters of Credit, or the use of the
proceeds thereof, whether or not any Indemnified Person is a party thereto and
(b) the actual or alleged presence of Hazardous Materials in the air, surface
water or groundwater or on the surface or subsurface of any property owned or at
any time operated by New USI or any of its Subsidiaries, the generation,
storage, transportation, handling or disposal of Hazardous Materials at any
location by New USI or any of its Subsidiaries, whether or not owned or operated
by the Company or any of its Subsidiaries, the noncompliance of any property
with Environmental Laws (including applicable permits thereunder) applicable to
any property, or any Environmental Claim asserted against the New USI, any of
its Subsidiaries or any property owned or at any time operated by New USI or any
of its Subsidiaries, (all the foregoing described in (a) and (b) above,
collectively, the "Indemnified Liabilities"); provided, however, that the
Borrowers shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities arising from the gross negligence or willful
misconduct of such Indemnified Person as the same is determined by a final
judgment of a court of competent jurisdiction. The obligations in this Section
12.05 shall survive payment of all other Obligations.
12.06 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that none of the Borrowers nor Old USI
92
may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Agent and each Bank, provided that the
Company may assign or transfer any of its rights or obligations under this
Agreement to another direct or indirect Wholly-Owned Subsidiary of New USI with
the prior written consent of the Majority Banks and the Agent so long as (i)
such Subsidiary assumes all of the obligations of the Company as a Borrower
hereunder and (ii) any obligations of such Subsidiary that are assigned or
transferred under this proviso are guaranteed on a similar basis as the
obligations of the Company are guaranteed.
12.07 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Borrowers
and the Agent, which consents shall not be unreasonably withheld, at any time
assign and delegate to one or more Eligible Assignees (provided that no written
consent of the Borrowers shall be required in connection with any assignment and
delegation by a Bank to an Eligible Assignee that is a Bank Affiliate of such
Bank) (each an "Assignee") all, or any ratable part of all, of the Loans, the
Commitment and the other rights and obligations of such Bank hereunder;
provided, however, that any such assignment to an Eligible Assignee shall be in
a minimum amount equal to $5,000,000 or the then remaining commitment of such
Bank and provided further, that the Borrowers, the Issuing Bank, the Swingline
Bank and the Agent may continue to deal solely and directly with such Bank in
connection with the interest so assigned to an Assignee until (i) written notice
of such assignment, together with payment instructions, addresses and related
information with respect to the Assignee, shall have been given to the Borrowers
and the Agent by such Bank and the Assignee; (ii) such Bank and its Assignee
shall have delivered to the Borrowers and the Agent an Assignment and Acceptance
in the form of Exhibit J ("Assignment and Acceptance"); and (iii) in the case of
any assignment to an Assignee which is not already a Bank, the assignor bank or
Assignee has paid to the Agent a processing fee in the amount of $3,000; and
provided still further, that any assignment hereunder of a Bank's Commitment
(other than such Bank's Multicurrency Commitment, if any) must include an equal
percentage of the assignor Bank's Commitment (other than such Bank's
Multicurrency Commitment, if any) and Committed Loans.
(b) From and after the date that the Agent notifies the
assignor Bank that the requirements of paragraph (a) above are satisfied, (i)
the Assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, shall have the rights and obligations of a Bank under the Loan
Documents, and (ii) the assignor Bank shall, to the extent that rights and
obligations hereunder and under the other Loan Documents have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents. Anything herein to the
contrary notwithstanding, any Bank assigning all of its Loans, Commitments and
other rights and obligations hereunder to an Assignee shall continue to have the
benefit of all indemnities hereunder following such assignment.
(c) Immediately upon each Assignee's making its payment under
the Assignment and Acceptance, this Agreement, shall be deemed to be amended to
93
the extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Aggregate Commitment arising
therefrom. The Commitment allocated to an Assignee shall reduce the Commitment
of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more banks or
other Persons not Affiliates of any Borrower (a "Participant") participating
interests in any Loans, the Commitment of such Bank and the other interests of
such Bank (the "Originating Bank") hereunder and under the other Loan Documents;
provided, however, that (i) the Originating Bank's obligations under this
Agreement shall remain unchanged, (ii) the Originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the Borrowers, Old
USI, the Issuing Bank, the Swingline Bank and the Agent shall continue to deal
solely and directly with the Originating Bank in connection with the Originating
Bank's rights and obligations under this Agreement and the other Loan Documents,
and (iv) no Bank shall transfer or grant any participating interest under which
the Participant shall have rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan Document, provided that
such Participant shall have the right to approve any amendment, consent or
waiver described in clauses (i), (ii) and (iii) of the first proviso to Section
12.01. In the case of any such participation, the Participant shall be entitled
to the benefit of Sections 4.01, 4.03 and 12.05, subject to the same
limitations, as though it were also a Bank hereunder, subject to clause (f)
below, and if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the extent
permitted under applicable law, be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision contained in this
Agreement or any other Loan Document to the contrary, any Bank may assign all or
any portion of the Loans held by it to any Federal Reserve Bank or the United
States Treasury as collateral security pursuant to Regulation A of the Federal
Reserve Board and any Operating Circular issued by such Federal Reserve Bank,
provided that any payment in respect of such assigned Loans made by the
Borrowers or Old USI to or for the account of the assigning or pledging Bank in
accordance with the terms of this Agreement shall satisfy the Borrowers' or Old
USI's obligations hereunder in respect of such assigned Loans to the extent of
such payment. No such assignment shall release the assigning Bank from its
obligations hereunder.
(f) No Participant shall be entitled to receive any greater
payment under Sections 4.01 or 4.03 than such Originating Bank would have been
entitled to receive with respect to the rights transferred unless such transfer
is made with the Borrowers' prior written consent.
12.08 Confidentiality. Each Bank agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" by any Borrower and provided to it
by New USI or any of its Subsidiaries, or by the Agent on New USI or such
Subsidiary's behalf, in connection with this Agreement or any other Loan
94
Document, and neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement; except to the extent such information (a) was or
becomes generally available to the public other than as a result of a disclosure
by the Bank, or (b) was or becomes available on a non-confidential basis from a
source other than any Borrower or Old USI, provided that such source is not
bound by a confidentiality agreement with any Borrower or Old USI, known to the
Bank; provided further, however, that any Bank may disclose such information (i)
at the request or pursuant to any requirement of any Governmental Authority to
which the Bank is subject or in connection with an examination of such Bank by
any such authority; (ii) pursuant to subpoena or other court process; (iii) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (iv) to the extent reasonably required in connection with
any litigation or proceeding to which the Agent, any Bank or their respective
Affiliates may be party; (v) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; and
(vi) to such Bank's independent auditors, other professional advisors and
employees of such Bank's Bank Affiliates (or any Affiliate of such Bank engaged
in capital market transactions generally) retained by such Bank in connection
with this Agreement. Notwithstanding the foregoing, the Borrowers authorize each
Bank to disclose to any Participant or Assignee (each, a "Transferee") and to
any prospective Transferee, such financial and other information in such Bank's
possession concerning New USI or its Subsidiaries which has been delivered to
Agent or the Banks pursuant to this Agreement or which has been delivered to the
Agent or the Banks by the Borrowers or Old USI in connection with the Banks'
credit evaluation of the Borrowers prior to entering into this Agreement;
provided that, unless otherwise agreed by the Borrowers or Old USI, such
Transferee agrees in writing to such Bank to keep such information confidential
to the same extent required of the Banks hereunder.
12.09 Set-off. In addition to any rights and remedies of the
Banks provided by law, if an Event of Default occurs and is continuing, each
Bank is authorized at any time and from time to time, without prior notice to
the Borrowers or Old USI, any such notice being waived by the Borrowers and Old
USI to the fullest extent permitted by law, to set off and apply, to the extent
permitted by applicable law, any and all deposits (general or special, time or
demand, provisional or final) at any time held by, and other indebtedness at any
time owing to, such Bank to or for the credit or the account of the Borrowers or
Old USI against any and all Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not the Agent or such Bank shall have made
demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured. Each Bank agrees promptly to notify
the Borrowers or Old USI and the Agent after any such set-off and application
made by such Bank; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each Bank
under this Section 12.09 are in addition to the other rights and remedies
(including other rights of set-off) which the Bank may have.
12.10 Notification of Addresses, Lending Offices, etc. Each
Bank shall notify the Agent in writing of any changes in the address to which
notices to the Bank should be directed, of addresses of its Lending Office, of
payment instructions in respect of all payments to be made to it hereunder and
of such other administrative information as the Agent shall reasonably request.
95
12.11 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement in any number of separate counterparts,
each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrowers and the Agent.
12.12 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
12.13 No Third Parties Benefited. This Agreement is made and
entered into for the sole protection and legal benefit of the parties hereto and
their permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan Documents.
None of the Agent, the Issuing Bank, the Swingline Bank or any Bank shall have
any obligation to any Person not a party to this Agreement or any other Loan
Document.
12.14 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT AND ANY OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
PARTIES HERETO EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
12.15 Waiver of Jury Trial. THE PARTIES HERETO EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS,
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION
96
SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY ARE
WAIVED BY OPERATION OF THIS SECTION 12.15 AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
12.16 Conversion of Currencies.
(a) If, for the purpose of obtaining judgment in any court, it
is necessary to convert a sum owing hereunder in one currency into another
currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower and each Guarantor Party
in respect of any sum due to any party hereto or any holder of the obligations
owing hereunder (the "Applicable Creditor") shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than the currency in which such
sum is stated to be due hereunder (the "Agreement Currency"), be discharged only
to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the
Applicable Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase the Agreement Currency with the Judgment
Currency; if the amount of the Agreement Currency so purchased is less than the
sum originally due to the Applicable Creditor in the Agreement Currency, each of
such Borrower and such Guarantor Party agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against
such loss. The obligations of the Borrowers and the Guarantor Parties contained
in this Section 12.16 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
* * *
97
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
USI AMERICAN HOLDINGS, INC.
By
Title: Treasurer
Address for notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Meulen
Assistant Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
U.S. INDUSTRIES, INC.
By
Title: Treasurer
Address for notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Meulen
Assistant Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
98
USI ATLANTIC CORP.
By
Title: Treasurer
Address for notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Meulen
Assistant Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By
Title:
Address for notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇
Agency Administrative
Services (#5596)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
99
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Issuing Bank
By
Title: Managing Director
Address for notices:
Bank of America National Trust
and Savings Association
Letter of Credit (#1580)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, VP
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇
Agency Administrative
Services (#5596)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Swingline Bank
By
Title: Managing Director
Address for notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Account Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇
Agency Administrative
Services (#5596)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Bank
By
Title: Managing Director
Address for notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Credit Products
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
BANKAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
as Arranger
By
Title:
Address for notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ___________________
Syndications (#2698)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/7031
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
102
SCHEDULE 1.01(a)
LENDING OFFICES
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
BANK OF AMERICA NATIONAL BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION TRUST AND SAVINGS ASSOCIATION
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
Domestic Lending Office
ABN AMRO BANK N.V.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page2
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
BANCA NAZIONALE DEL LAVORO
S.P.A., NEW YORK BRANCH
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇ MEDIDA
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ or 5091
ATTN: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page 3
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
1251 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
BANKERS TRUST COMPANY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
BANQUE PARIBAS
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK THE CHASE MANHATTAN BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ European Loan Services
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 1 Chaseside
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ LANCIA Fax: (011)(44)(1202) 34-3706
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇ HOLES
Tel: ▇▇▇-▇▇-▇▇▇▇-▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page 4
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
CIBC, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT LYONNAIS NEW YORK BRANCH
1301 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
THE DAI-ICHI KANGYO BANK, LIMITED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page 5
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
DEUTSCHE BANK AG, NEW YORK DEUTSCHE BANK AG, CAYMAN
BRANCH ISLANDS BRANCH, C/O NEW YORK
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ ATTN: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
THE FIRST NATIONAL BANK OF CHICAGO
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page 6
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
THE FUJI BANK, LIMITED, NEW YORK BRANCH
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: CHIGUSA TADA/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW YORK
BRANCH
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
LTCB TRUST COMPANY
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: NAOYOSHI KASUGA
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page 7
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
MARINE MIDLAND BANK
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
MELLON BANK, N.A.
3 Mellon Bank Center
Room 153-2302
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/5014
ATTN: ▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page 8
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
NATIONAL WESTMINSTER BANK NATIONAL WESTMINSTER BANK PLC,
PLC NASSAU BRANCH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇ ATTN: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇ ATTN: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONSBANK, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
PNC BANK, NATIONAL ASSOCIATION
Two Tower Center Blvd.
Corporate Banking Dept, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page 9
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇-
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇ AMER. #1 BRANCH)
▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 4th Floor
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: MANAGER, LOANS ADMINISTRATION
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ ATTN: MANAGER, LOANS ADMINISTRATION
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
THE ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
(Ext. 213)
THE SANWA BANK, LIMITED, NEW YORK BRANCH
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇, VP
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page 10
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
SOCIETE GENERALE
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK
BRANCH
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇ ▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(a)
Page 11
EURODOLLAR LENDING OFFICE
DOMESTIC LENDING OFFICE (IF DIFFERENT)
----------------------- -------------------------
TORONTO-DOMINION (NEW YORK), INC.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
HONG KONG SHANGHAI BANK
--------------------------------
--------------------------------
--------------------------------
SCHEDULE 1.01(b)
COMMITMENTS
Multicurrency
Bank Commitment Commitment
---- ---------- -------------
ABN AMRO BANK, N.V. $30,000,000.00 -
BANCA NAZIONALE DEL LAVORO S.P.A.,
NEW YORK BRANCH $10,000,000.00 -
BANK OF AMERICA $40,000,000.00 $70,000,000.00
THE BANK OF NEW YORK $20,000,000.00 -
THE BANK OF NOVA SCOTIA $20,000,000.00 -
BANK OF TOKYO-MITSUBISHI TRUST COMPANY $20,000,000.00 -
BANKERS TRUST COMPANY $20,000,000.00 -
BANQUE PARIBAS $30,000,000.00 -
THE CHASE MANHATTAN BANK $30,000,000.00 $70,000,000.00
CIBC, INC. $17,500,000.00 -
CITIBANK, N.A. $30,000,000.00 -
CREDIT LYONNAIS NEW YORK BRANCH $20,000,000.00 -
THE DAI-ICHI KANGYO BANK,
LIMITED $17,500,000.00 -
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH $17,500,000.00 $70,000,000.00
THE FIRST NATIONAL BANK OF CHICAGO $17,500,000.00 -
FLEET NATIONAL BANK $35,000,000.00 -
THE FUJI BANK, LIMITED, NEW YORK BRANCH $20,000,000.00 -
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH $30,000,000.00 -
SCHEDULE 1.01(b)
Page 2
LTCB TRUST COMPANY $20,000,000.00 -
MARINE MIDLAND BANK $20,000,000.00 $70,000,000
MELLON BANK, N.A. $20,000,000.00 -
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF $30,000,000.00 -
NEW YORK
NATIONAL WESTMINSTER BANK PLC $30,000,000.00 -
NATIONSBANK, N.A. $30,000,000.00 -
PNC BANK, NATIONAL ASSOCIATION $20,000,000.00 -
ROYAL BANK OF CANADA $20,000,000.00 -
THE ROYAL BANK OF SCOTLAND PLC $17,500,000.00 -
THE SANWA BANK, LIMITED,
NEW YORK BRANCH $20,000,000.00 -
SOCIETE GENERALE $20,000,000.00 $70,000,000.00
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH $30,000,000.00 -
THE SUMITOMO TRUST & BANKING CO., LTD,
NEW YORK BRANCH $17,500,000.00 -
TORONTO-DOMINION (NEW YORK), INC. $30,000,000.00 -
Total
Aggregate Multicurrency
Commitment Commitment
----------- --------------
$750,000,000 $350,000,000
